APPLICANTS: Kevin Bell, Jan Eager and Paul Eager

RESPONDENTS: Liquor Licensing Victoria and Swapnil Pty Ltd

The Applicants' application for a stay of the decision of the Liquor Licensing Commission to grant a packaged liquor licence to Swapnil Pty Ltd is dismissed.

Mr J Larkins of Counsel instructed by Mahonys, Solicitors for the Applicants.

Mr J Strahan QC of Counsel for Liquor Licensing Victoria

1. The applicants in this proceeding, Kevin Bell, Jan and Paul Eager, issued an application before the Tribunal on 30 July 1999 seeking to review a decision of Liquor Licensing Victoria ("LLV") made 8 July 1999.

2. The decision of LLV which the applicants seek to review is a decision by the Director of that Authority to refuse to accept objections made by the applicants to the proposed grant of a packaged liquor licence to Swapnil Pty Ltd ("Swapnil") at grocery premises in Doncaster Road, Greythorn. However, on 22 June 1999 and prior to giving notice to the applicants of refusal to accept their objection to the grant of a liquor licence to Swapnil, LLV granted the licence subject to certain conditions.

3. On 13 August 1999 the applicants made an ex parte application before me to stay the decision to grant a liquor licence to Swapnil pending the hearing and determination of the application to review the decision made by LLV not to accept the objection of the applicants. I declined to grant a stay on an ex parte basis and directed that the filing and service of an application for a stay together with any affidavits in support take place on or before 18 August 1999. I adjourned the application until 26 August 1999

4. Upon the return of the application Mr Larkins of Counsel appeared for the applicants and Mr Haag of Counsel appeared for Swapnil. Mr Strahan QC appeared for LLV. Apart from informing me that he was instructed not to consent to the application made by the applicant and that he contended that the decision of LLV to refuse to accept the objection was not within the jurisdiction of VCAT to review, Mr Strahan had no other substantive part to play in the application and, accordingly, I granted him leave to withdraw from the further hearing of the application for a stay.

5. In the course of the application Mr Larkins relied upon affidavits sworn by his instructing solicitor, Mr John Nolan, on 18 August 1999 and by the first applicant, Kevin Bell, and by the second applicant, Jan Eager, both sworn on 17 August 1999. I granted an application by Mr Haag to cross-examine Mr Bell. Mr Patel, a director of Swapnil, also gave evidence before me on behalf of that company.

6. The stay is sought pursuant to the provisions of s.50(3) of the Victorian Civil & Administrative Tribunal Act 1998 ("the Act") which section is set out below:

(1) Subject to subsection (2), the commencement of a proceeding for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

(a) if the enabling enactment provides otherwise, or

(b) if the Tribunal makes an order under subsection (3).

(3) The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.

(4) The Tribunal may make an order under subsection (3)

(a) on application by any party or on its own initiative;

(b) whether or not it has given any person whose interest may be affected by the order an opportunity to be heard.

(5) In making an order under subsection (3) the Tribunal

(a) may require any undertaking as to costs or damages that it considers appropriate; and

(b) may make provision for the lifting of the order if specified conditions are met.

(6) The Tribunal may assess any costs or damages referred to in subsection 5(a).

(7) The Tribunal's power to make an order under subsection (3) is exercisable by the presiding member."

7. Mr Larkins of Counsel submits that a stay is necessary because the "effectiveness" of a review of the decision of LLV by the Tribunal may be jeopardized if the decision of LLV is carried and/or continued into operation. He relies upon the principle set out in Metro Palace Pty Ltd v Liquor Licensing Commission & Ors (Full Court, Supreme Court of Victoria, 19 May 1989 unreported) wherein it is stated (at page 27 per McGarvie J):

"Ordinarily it is proper that a tribunal which has made a decision should use its powers to facilitate an appeal against or a review of the decision which is given by the law, cf. Charlton v Members of the Teachers' Tribunal [1981] VicRp 79; [1981] VR 831 at 842-3."

Mr Larkins submits that although the above statement related to disciplinary proceedings, the circumstances are analogous with the circumstances presently before the Tribunal. He submits that the review jurisdiction of VCAT insofar as it relates to the Liquor jurisdiction under the Liquor Control Reform Act 1998 is an exercise of a power to have regard to the public interest, rather than the determination of an "inter partes" dispute. Mr Larkins submits that the principles governing stays in civil litigation and in particular the principle that a stay will be granted only where special or exceptional circumstances exist, (see Cellante & Anor v G. Kallis Industries Pty Ltd (1991) 1 VR 653) are not necessarily applicable in the present case or to the review jurisdiction of VCAT in a general sense.

8. Mr Larkins further submits that in circumstances where the director of LLV has made an administrative decision without having given the parties an opportunity to be heard there is all the more reason for a stay to be granted. That is, he argues that there is an even greater justification for a stay of a decision made in such circumstances than there might be in cases where the decision under review is a decision which has been made after a full hearing of the merits of the matter. He submits that it is desirable that in circumstances where there is a review process, for the decision which is to be acted upon to be the final decision. He submits that the process of granting of liquor licences by LLV will be brought into disrepute if parties act upon a decision which is subsequently overturned at review. Furthermore, he submits, that where there is as in this case, a merits appeal, a stay should usually be granted particularly in circumstances where the original decision-maker is not bound by the rules of natural justice in making his initial decision. Furthermore, Mr Larkins submits that in this case there is a serious question to be tried as to whether or not the Tribunal has the power to review a decision by LLV not to accept an objection to the grant of a licence.

9. Mr Haag of Counsel argues first that the applicants have no standing before the Tribunal as there is a jurisdictional issue. He argues that the LLV has determined that the applicants have no right of objection and that the applicants have no right to review such a decision. Insofar as this argument is concerned it does not appear to me to be appropriate to determine the issue of jurisdiction upon a preliminary application of the nature made by the applicants before me. I was informed by Mr Strahan QC and by Mr Larkins that there is a "test case" being arranged to be heard by the His Honour Judge Wood, the Vice President in charge of the Administrative Division of VCAT, in the next several weeks to have the issue of jurisdiction in circumstances where the LLV had refused to accept an objection lodged with it. That case will no doubt be determined after full argument. Suffice to say that on this application I am not satisfied that the applicants do not have jurisdiction to review a decision of LLV to reject objections. I make it clear that this is not a definitive finding on the issue but is a preliminary view expressed in the exigencies of the present application and in the absence of detailed submissions about the matter. In addition to maintaining that there is no jurisdictional basis upon which the applicants are entitled to maintain any application to review before this Tribunal, Mr Haag further argues that if one examines the affidavits of the applicants and the evidence given by Mr Bell before me on this application, no reasonably arguable case on the merits is established. I consider it inappropriate for me to make any finding on whether or not there is a reasonably arguable case as to the issue of amenity. For the purposes of this application however, it appears to me to be sufficient to say that I am not satisfied on the material presently before me that it could be said that the applicants' case is so overwhelming that it cannot fail if the issue of jurisdiction is determined in due course in their favour.

10. I turn now to consider some of the issues of principle raised by this application. It is clear that by reason of s.50 of the Act the Tribunal has power to stay any decision made by an original decision-maker pending review. It is clear that such a power is a discretionary power to be exercised after full consideration of the circumstances and the facts of each particular case. One of the issues which the Tribunal may take into account is whether or not the applicants are prepared to make any undertaking that may be appropriate as to costs or damages. Mr Larkins of Counsel informed me that he was not instructed to make any such undertaking. That is not however the only issue, or indeed the most significant issue.

11. I accept the submission made by Mr Larkins of Counsel to the effect that the liquor jurisdiction is not an inter partes jurisdiction. I accept that the principle in relation to the nature of such decision is generally as stated in R v Liquor Control Commission ex parte Woolworths (Vic) Ltd [1972] VicRp 58; (1972) VR 514 at 520 and quoting Lord Herschell in Boulton v Justices of Kent [1897] A.C. 556 at 569 where he said:

"Persons objecting to the grant of a licence are not, I think, parties to the proceedings on the application in any proper sense of the term. The question is not one of inter partes at all. The Justices have an absolute discretion to determine, in the interest of the public, whether a licence ought to be granted, and every member of the public may object to the grant on public grounds, apart from any individual right or licence of his own. The applicant seeks a privilege. A member of the public who merely objects informs the mind of the Court to enable it rightly to exercise its discretion whether they grant that privilege or not. A decision that a licence should not be granted is a decision that it would not be for the public benefit to grant it. It is not a decision that the objector has a right to have it refused. It is not, properly speaking, a determination in his favour. It is, I think, a fallacy to treat the refusal as necessarily induced by a particular objector. Every member of the local community might object. ... There is, in truth, ..... no controversy inter partes, and no decision in favour of one of them and against the other, unless indeed the entire public are regarded as the other party, for if a licence be refused on a ground that it was not needed to supply the legitimate wants of the neighbourhood, the decision is really in favour of the public at large."

Although the legislation has changed over the years that principle still gives significant guidance as to the nature of liquor licensing decisions.

12. In my view the first and dominant principle is whether or not the failure to grant a stay will render the application for review before the Tribunal as nugatory. I do not consider that such a stay would render the appeal nugatory in the present circumstances. Certainly, it is the fact that Swapnil intends to proceed with the installation of refrigeration equipment and the undertaking of renovations with a view to exercising its right to sell packaged liquor pursuant to the decision of LLV. However, Swapnil is fully aware of the fact that the decision made by LLV is under review. In the event that the Tribunal finds the application for review should be upheld, Swapnil could hardly be heard to argue that it has been inclined to act to its detriment and that such an act would be a matter of significant relevance to the final decision. Swapnil has accepted the commercial risk of proceeding to implement works with the full knowledge of the nature of the challenge to the decision of LLV. If that risk materialises Swapnil will be required to cease trading in liquor. It will have to accept the consequences of the risk it has chosen to take. In such circumstances it does not appear to me that a failure to grant a stay will in any way render the appeal nugatory. Indeed if the unsatisfactory consequences alleged by the applicants to be likely to occur by reason of the grant of a licence to Swapnil actually come to fruition in the meantime, the applicants' case might be strengthened by reason of the fact that Swapnil has engaged in the sale of liquor during the period preceding the hearing of the application for review.

13. Clearly the issue of whether or not there is a serious question to be tried on review is a matter of some importance in the proper exercise of the discretion to grant a stay. Save for the opinion expressed above that I am of the preliminary opinion that there is a serious issue as to jurisdiction to be decided but that the evidence led before me does not convince me that the applicants' case in relation to issues of amenity is so overwhelming that it cannot fail, I do not consider it appropriate to make any further finding on these issues at this time. However the fact that there is a serious issue to be tried is only one factor in the process of considering whether or not the exercise of a discretion to stay the earlier decision of LLV's is appropriate.

14. The issue of whether or not it is in the community interest that a stay be granted is, I think, a proper matter to be taken into account. This involves a consideration of the need to protect the private interests of the respondent in this case and the necessity to weigh them in the balance against the public interest. I accept the argument of Mr Larkins that it is undesirable that a liquor licence might be granted by LLV which licence might later be removed by reason of a decision by this Tribunal or indeed by reason of a decision of the Supreme Court. However, that is the appellate process set up by the relevant legislation. It is arguable that it is equally undesirable that an applicant for a liquor licence who commenced to act upon the grant of the licence, then be stayed by an order of this Tribunal without a full hearing of the review proceeding, and then in due course be granted a licence. In my view this issue is not of such significance that in the circumstances of the case presently before me a stay ought to be granted.

15. It is a relevant matter in my view as to what period of time will elapse before the hearing of any application for a review of the decision made by LLV. In the present case, the issue of jurisdiction will I believe be determined as a matter of principle in the near future. It is in my view incumbent upon this Tribunal to endeavour to ensure that the hearing of applications to review decisions made by LLV take place as soon as is reasonably possible so as to minimize the economic and other circumstances arising because of such reviews upon the parties. Of course the issue of delay may also be grievous to Swapnil if a stay is granted and the application for review is subsequently dismissed.

16. Applications for stay of decisions made by LLV (or its predecessor) have been made before this Tribunal in the past. In a matter of Roach and Minski v Liquor Licensing Commission (28 May 1999) Senior Member Urquhart prepared written reasons on a decision not to grant an application for a stay. Senior Member Urquhart relied upon a decision of Assistant Commissioner Bond in a matter before the Full Commission of the former Liquor Licensing Commission dated 23 May 1995 in relation to an application by Benomen Pty Ltd. In my opinion the principles referred to in those decisions continue to have effect in relation to applications to review to this Tribunal under decisions made pursuant to the Liquor Control Reform Act 1998.

17. Furthermore, I adopt the comments of Davies J in Re Dekanic and the Tax Agents Board (1982) 6ACD 240 where his Honour said with respect to a similar provision as s.50 in the Commonwealth AAT Act:

"The jurisdiction is wide and diverse and it is not practicable to lay down a principle ..... applicable to every type of case in respect of which there may be an application for a stay."

18. However, for the reasons set out above and adopting the principles referred to above, I do not conclude that the appropriate exercise of my discretion pursuant to s.50(3) of the Act justifies the grant of a stay in the circumstances of this case. Swapnil can be under no illusion that it has taken other than a commercial risk by arranging to sell packaged liquor pursuant to the licence granted to it in circumstances when there is a review in process. Furthermore, although I am satisfied that there is a serious issue as to jurisdiction to be tried, I do not consider that the applicants' case is so overwhelming in terms of the merits that it cannot fail. I do not consider that there is any grave risk of prejudice accruing to either party by the grant or the refusal of a stay. In the circumstances of this particular case the application for a stay is dismissed.