MATTER : Application for a Writ of Certiorari against The City of Bunbury; His Honour Judge R Greaves, Liquor Licensing Court; Technotron Investments Pty Ltd (ACN 057 726 244)

Administrative law - Prerogative writs and orders - Certiorari - Delay

Liquor Licensing Amendment Act (No 2) No 74 of 1997

Ainsworth v CAC (1992) 175 CLR 149

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247; 155 ALR 684

Bott v Meagher (1996) 39 NSWLR 710

Coles Myer Ltd v O'Brien (1992) 28 NSWLR 525

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Gudgeon v Black (1994) 14 WAR 158

Liquorland (Aust) Pty Ltd v Porton Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 950287; 8 June 1995

Lucic v Nolan (1982) 45 ALR 411

Meagher v Bott, unreported; NSWCA; BC 9605481; 15 November 1996

Minahan v Baldock [1951] HCA 27; (1951) 84 CLR 1

Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241

Queensland Medical Laboratories v Blewett [1988] FCA 423; (1988) 84 ALR 615

R v Birmingham City Council; ex parte Ferrero Ltd [1931] 1 All ER 530

R v City of Tea Tree Gully; ex parte Concrete Systems Pty Ltd & Ors [No 2] (1986) 65 LGRA 67

R v Epping and Harlow General Commissioners; ex parte Goldstraw [1983] 3 All ER 257

R v Middleton Justices; ex parte Collins [1970] 1 QB 216

R v Stafford Justices; ex parte Stafford Corporation [1940] 2 KB 33

R v Statutory Visitors to St Lawrence's Hospital, Caterham; ex parte Pritchard [1953] WLR 1158

R v Williams; ex parte Phillips [1914] 1 KB 608

R v Wright; ex parte Waterside Workers' Federation of Australia [1955] HCA 35; (1955) 93 CLR 528

Ralkon v Aboriginal Development [1982] FCA 153; (1982) 43 ALR 535

Re Bennett-Borlase; ex parte Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997

Re Comalco Aluminium (Bell Bay) Ltd; ex parte Australian Workers' Union (1995) 70 ALJR 142

Re Herrod; ex parte Leeds City Council [1976] 1 QB 540

Re Smith; ex parte Rundle (1991) 5 WAR 295

Re The Minister for Minerals and Energy; ex parte McKenna (1989) 2 WAR 401

Re Warden Heaney (1997) 18 WAR 421

1 This is an application for an order nisi for a writ of certiorari seeking to quash a certificate made pursuant to s 40 of the Liquor Licensing Act 1988 ("the Act") by the first respondent on 24 September 1997, and a tavern liquor licence granted on 17 April 1998 by the second respondent to the third respondent.

2 The ground of the application, broadly, was that the existence of a "valid" s 40 certificate was a condition precedent to the exercise of jurisdiction to grant the tavern licence. The s 40 certificate in this case is said to be "void" in that it reveals a fundamental error of law, alternatively constitutes the exercise of a power so unreasonable that no reasonable person or authority could have exercised it, or alternatively, that it was not authorised by the enactment in pursuance of which it was purported to be made, or, finally, in the alternative, that it was granted by taking into account an irrelevant consideration, namely, the belief of the maker that the application by the third respondent was for a liquor licence for a restaurant.

3 The second and first respondents indicated that they would abide the decision of the court on the application. The third respondent submitted that the application should be dismissed on the basis that there was no arguable case for a writ of certiorari to issue, and further, that no order nisi should be granted because the applicants have been guilty of delay in objecting to the s 40 certificate and because they have failed to avail themselves of the alternative statutory remedy of appeal provided by the Act.

4 A brief history of the facts leading up to the present application is as follows. In 1996 the third respondent purchased the premises at Lot 8 Ocean Drive, Bunbury ("the premises") which was then used as a restaurant. Its zoning was for "restaurant" use and it held the relevant liquor licence. In 1997, the third respondent made application to the second respondent for a tavern licence. On 24 September 1997, an officer of the first respondent certified that the use of the premises "as a licensed premises ... will comply with all relevant planning laws" and that "it is known that the authority will give that consent subject to the following probable conditions/restrictions; nil". At the same date, the first respondent's Town Planning Scheme provided that the premises were zoned "special use", that the permitted use was "restaurant" only and that certain "development conditions" attached to the premises.

5 It is not clear how the certificate came to be given as it was, and on the material before me it appears that the content of the certificate was plainly wrong.

6 On 17 April 1998, the second respondent granted the third respondent's application for a tavern licence.

7 In "mid-1998", according to Mr Daqui, a director of the third respondent, an officer of the first respondent spoke to him about the zoning of the premises and at about the same time, in June 1998, the Ministry of Planning wrote to the director of liquor licensing urging that the tavern licence not be granted on the basis that the zoning of the premises did not permit such a use. By then the second respondent was functus officio.

8 In July 1998, the third respondent applied for planning approval for an extension to the premises, and the approval granted by the first respondent made it clear that that approval was granted subject to the premises being used only in accordance with the definition of "restaurant" contained in the Town Planning Scheme text. On 10 July 1998, having been closed for five weeks for certain work to be done, the premises re-opened as a tavern.

9 In September 1998, it came to the notice of solicitors for the applicants that the premises were zoned for restaurant use only. Although the applicants had appeared as objectors at the hearing before the second respondent, at which the s 40 certificate was tendered, they had apparently at that time accepted it at face value. The solicitors for the applicants wrote to the first respondent on 29 September 1998 and to the Minister for Planning on 19 November 1998 seeking to have the zoning enforced.

10 In January 1999, a letter from the third respondent's solicitors to the first respondent contained references to certain previous correspondence which make it reasonably clear that the third respondent had by then viewed, or become aware of, correspondence relating to the alleged inaccuracy of the certificate and to the alleged inability to use the premises as a tavern pursuant to the Town Planning Scheme. They were also by then aware that there was a suggestion that the applicants might seek a writ of mandamus to ensure that the first respondent enforced its planning legislation.

11 On 24 February 1999, the first respondent served the third respondent with a notice of contravention in respect of the use of the premises as a tavern rather than as a restaurant. In February and March 1999 the third respondent sought an injunction seeking to restrain the first respondent from proceeding against it pursuant to the notice of contravention, which application was unsuccessful.

12 In April 1999, the applicants applied for and obtained an order nisi for a writ of mandamus directed to the first respondent. At a conference on 3 May 1999, it appears that the solicitors for the applicants first advised them that it would also be possible to attack the grant of the licence on the basis of the inaccuracy of the s 40 certificate. The application for the order nisi was made on 25 October 1999. The delay of almost six months between the receipt of advice and the application for the order nisi is sought to be explained in part by the applicants' evidence that over the three months to October 1999 there had been changes in ownership of some of the applicants and in ownership of certain other hotels, the licensees of which are contributing towards the costs of these proceedings. I am invited to infer that these changes may have led to some revisiting of the desirability of the present proceedings and of the manner in which they would be funded.

13 The manner in which the court is to consider an application for an order nisi was discussed in Talbot v Lane (1994) 14 WAR 120. In the judgment of Malcolm CJ, with whom Kennedy and Ipp JJ agreed, his Honour approved the description of the purpose of the order nisi stage given by Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 642-644 (at 152-3).

14 The purpose of the order nisi stage is to prevent the time of the court being wasted by "busybodies with misguided or trivial complaints of administrative error" and to remove the uncertainty which might otherwise exist about whether persons could safely proceed while proceedings for judicial revue were pending. The question is whether, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the relief claimed. Lord Diplock also noted in the passage referred to that the discretion which the court exercises at this stage is not the same as that which it is called upon to exercise "when all the evidence is in and the matter has been fully argued".

15 At the relevant time, s 37 of the Act relevantly read as follows:

"(1) An application to the licensing authority for the grant of a licence, ... shall not be granted by the licensing authority unless the licensing authority is satisfied that the person named in that application is a fit and proper person to be the licensee of the premises to which the application relates, and - ...

(d) except where paragraph (c) applies [which it did not in this case] -

(ii) as to the matters referred to in subsection (2); and

(iii) as to the matters referred to in certificates required to be produced under section 39 and section 40 unless the licensing authority considers that such a certificate, or any matter referred to in such a certificate, would not to be appropriate.

(2) On any application the licensing authority may require to be satisfied that any approval, consent or exemption required -

(a) under the law relating to planning to permit the use of the premises for the sale of liquor; and

(b) under any written law, for the carrying out of building work that is to be carried out before the licence or permit sought takes effect,

(1) Where the licensing authority is to determine any application and it is so required, under section 37(1)(d) or otherwise, the applicant shall produce a certificate of the authority responsible for town planning matters in the district in which the premises to which the application relates are situated or are to be situated certifying that the proposed use of the premises -

(a) will comply with the requirements of the written laws relating to planning specified;

(b) would comply with the requirements specified if consent were to be given by a specified authority, if it is known whether that authority will give the consent, and what specified conditions or restrictions should be, or are likely to be, imposed; or

(c) will not comply with the requirements specified for the reasons specified.

(2) In subsection (1), 'specified' means specified in the certificate.

(4) An authority requested to provide, or to provide views that relate to, a certificate under this section shall do so as soon as is reasonably practicable, but where the licensing authority is satisfied that a certificate has been requested but has not been provided the requirement of subsection (1) may be waived or modified.

(5) Notwithstanding that a certificate is issued under this section the discretion of the licensing authority exercisable in determining an application and its obligations under section 37(1), are not thereby diminished."

17 There are some obvious difficulties in the constructions of s 37 and s 40, particularly when read together. For example, it appears that the licensing authority "shall not" grant approval unless satisfied as to the matters referred to in s 37(2), when that subsection itself provides only that the licensing authority "may" require to be satisfied of certain matters.

18 It is also odd that the licensing authority is not to grant a licence unless satisfied as to "the matters referred to in certificates" pursuant to s 40, and that one of those "matters" appears to be that pursuant to s 40(1)(c) the proposed use "will not comply" with written laws relating to planning. Presumably, the relevant satisfaction is satisfaction that the use of the premises in the manner proposed by the licence would be lawful, rather than that the requirements of the planning laws could not be satisfied.

19 The statute provides no clues as to the circumstances in which a licensing authority could reasonably consider that a certificate "would not be appropriate". The provision of s 37(4) that the requirement of a certificate may be waived or modified where it has been requested but not provided may be one relevant circumstance, but there may be others.

20 Importantly, the relationship between the content of the certificate and the relevant satisfaction pursuant to s 37 is not immediately apparent. As a matter of first impression, s 37 requires that not only must there be a certificate, but that the licensing authority must be "satisfied" as to the matters which it contains; that is, the mere existence of a certificate is not sufficient to fulfil the statutory requirement. It would appear that the licensing authority may rely upon the certificate in order to satisfy him or herself as to the matters which it contains, but that the possibility is left open of further evidence which might bear on the matters contained in the certificate; that is, the certificate does not appear to be conclusive proof of its contents. The procedure by which the certificate is produced, and the form of the certificate appear to be matters left to the discretion of the relevant local authority.

21 The statutory intention appears to be reasonably clear. On the Second Reading of the Bill for the Act, the Minister introducing it into the Legislative Assembly observed that "The Government recognises the important role played by local government in deciding where licensed premises should be located. The licensing authority will not be able to grant a licence unless prior local government planning approval is given" (Hansard 13 September 1988 at 2652).

22 The applicants submit that the procedure set out in the Act is an example of the relatively familiar "two-stage" decision making process in which information is provided by one body, usually in the form of a report or recommendation of some kind, to another body, which in turn makes the decision which relevantly affects rights. If the preliminary step is one which constitutes a condition precedent to an exercise of power that will affect legal rights, it may attract certiorari. Examples taken from West Australian context are to be found in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 and Coastal Waters Alliance v Environmental Protection Authority (1996) 90 LGERA 136.

23 The applicants submit that since the licensing authority in this case, had not come to the conclusion that it would not be appropriate to acquire a s 40 certificate, a s 40 certificate is a precondition to the grant of a licence. That proposition is not difficult to accept. However, the applicants also submit that it is necessary that the certificate be a "valid" one. In this case, having regard to the terms of the relevant Town Planning Scheme, the certificate is said to be a nullity for the reasons referred to in the grounds of the application.

24 The third respondent submits that certiorari is not available to correct a mistaken s 40 certificate, since the issue of such a document is a purely ministerial or administrative act involving no substantial element of choice or discretion. However, it appears to me that it is at least arguable that the content of the certificate does require a determination by the first respondent as to the relevant planning law and as to its application or potential application to the proposal before the licensing authority. Depending upon the content of the particular planning legislation, that may in addition require consideration of matters of discretion. It is arguable that the determination of the content of the certificate is a determination as to legal rights, rather than a truly "ministerial" act.

25 The third respondent further submits that even if the s 40 certificate involves making of a determination or decision, it was not an essential condition of the existence of the first respondent's jurisdiction that the certificate be accurate. It is submitted that it was necessary that the licensing authority be "satisfied" as to the relevant matters but not that that satisfaction be correct as a matter of objective fact. One can see merit in this submission. However, as I have noted, the interrelationship between s 40 and s 37 gives rise to questions of some difficulty.

26 I would see it as reasonably arguable that, should the challenge to the s 40 certificate succeed, the decision of the licensing authority might be liable to be quashed on the basis that there was then no material capable of grounding the relevant "satisfaction". It is, of course, not unusual for certiorari to issue to quash a decision which is based upon a wrong step taken at an earlier stage of the decision making process, and I have already referred to Hot Holdings Pty Ltd and to Coastal Waters Alliance in that context. Without forming any concluded view of the merits, I would see it as reasonably arguable that s 37 and s 40 of the Liquor Licensing Act may fall within the same general category of decision making.

27 I do not think it is necessary to deal at length with the availability of an appeal from the decision of the Liquor Licensing Court. Pursuant to s 28, an appeal lies only upon a question of law. It seems to me very doubtful whether an appeal would lie in this case, in which it is not submitted by the applicants that the court made an error of law but rather that it lacked jurisdiction because the only material which could have led to a relevant satisfaction pursuant to s 37 was fundamentally flawed. The jurisdictional challenge to the court's decision is properly made by way of certiorari and not by way of appeal.

28 More importantly however, the applicants have been guilty of serious delay in bringing this application. So far as questions of principle are concerned, very detailed observations were made concerning the circumstances in which an extension of time for bringing an application for orders of review of administrative decisions will be ordered pursuant to the Administrative Decisions (Judicial Review) Act was undertaken by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344. It appears to me that the considerations there set out are, in general, those which are appropriate to be considered in relation to an application for an order nisi for a writ of certiorari, and I gratefully adopt his Honour's analysis of the relevant factors without incorporating it into these reasons. Factors which are relevant in this case, appear to me to be the following.

29 First, it seems from the chronology which I have recited, that the applicants have not "slept on their rights". They have been taking a variety of courses designed to ensure that the true effect of the relevant Town Planning legislation, as they perceive it, is brought to the notice of the third respondent and of relevant authorities. Although the particular decision of the Liquor Licensing Court has not been directly challenged, third the respondents has been aware for some considerable time that the applicants take the view that they are not permitted to use the premises for the purposes of a tavern. It is clear from the affidavits of Mr Daqui and Mr Gardiner, both directors of the third respondent, that it has for some time been aware of the need to demonstrate that it may properly use the premises for the purpose of a tavern. Mr Daqui said that he has been for some time "involved in a range of activities in defence of Technotron's position in relation to the tavern", while Mr Gardiner notes that from late June 1998 the first respondent has opposed the operation of the premises as a tavern.

30 So far as the question of prejudice to the third respondent is concerned, I put aside the evidence in the affidavits relating to the time and expense involved in applying for, and obtaining, the tavern licence. That time and expense would have been relevantly wasted whether this application was brought within time or not, should the application ultimately be successful.

31 However, there is evidence in the affidavit of Mr Gardiner of substantial expenditure in relation to refurbishment and improvements to the premises which included painting, replacement of floor coverings, re-sanding of floors, sign writing, purchase of equipment, and certain additional works which were ordered by the Liquor Licensing Court since the opening of the premises as a tavern, these last works costing in the vicinity of $17,000. The first set of works was undertaken within approximately 7 weeks of the tavern licence being granted; those improvements cost approximately $41,000. Other work is said to have been done between "10 July 1998 and about June 1999". There is clearly likely to have been some expenditure incurred by the third respondent as a result of its obtaining of the licence, and before it was made aware of any assertions that the premises could not be used for the purpose of tavern.

32 However, it appears that it was in "mid-1998", relatively soon after the grant of the licence, that the effect of the relevant zoning was raised with Mr Daqui by the first respondent. His affidavit is not clear as to the precise circumstances of the conversation. From early 1999, it was very plain that there was an issue about the third respondent's ability to operate the premises as a tavern. Further, it is not clear how much of the work referred to in the affidavit of Mr Gardiner was directly related to a need to adapt the premises to use as a tavern. It may be that certain of the expenditure - for example, painting - was either expenditure which would have been required in due course in any event, or is expenditure which would not necessarily be thrown away should the premises ultimately be able to be used only for restaurant purposes. There is some prejudice occasioned by the delay, but it is difficult to quantify and it does not appear to be substantial.

33 There is arguably merit in the substantial application. This is not a case which involves day-to-day matters of public administration; nor, I think, does it involve questions of fairness, as between the applicants and other persons otherwise in a like position.

34 The most difficult question in relation to the applicants' delay for present purposes stems from the 6 months from 3 May 1999. The applicants were plainly remiss in not taking earlier steps once advice was received, and the reasons advanced in relation to changes of ownership go only part way to explaining that delay, and explain in part only 3 months of a period between receiving advice in may and bringing these proceedings in October.

35 In Re Minson; ex parte South West Forests Defence Foundation, unreported; SCt of WA (White J); Library No 930643; 25 November 1993, White J considered what would constitute a "satisfactory" account of delay for the purposes of O 56 r 11. His Honour adopted the view expressed by Commissioner O'Connor QC that:

"... what is required is a detailed explanation of the delay in making the application. That a detailed explanation of the delay should be given is consonant with my view of the importance the courts place upon the necessity for applications for certiorari to be made expeditiously. Thus, in my view, if the account of the delay is to be satisfactory, it should give a good explanation of why the entire period of delay occurred and not merely explain some part of the delay." (Halliwell v The Australian Builders' Labourers' Federated Union of Workers, unreported; SCt of WA; Library No 7836; 7 September 1989 at 11-12).

36 I see no reason to depart from the views expressed in those cases. The applicants' "account" of the final 6 months of delay (assuming, without deciding, that the earlier periods have been satisfactorily explained) is partial, perfunctory, and vague. I am not satisfied that that delay has been accounted for, and I am therefore unable to grant the order sought.