Durrisdeer P/L v Nordale Management P/L & Anor [1996] QCA 558

This appeal should be dismissed for the reasons given by Ambrose J., subject to the reservation mentioned in the reasons of Pincus J.A., with which I also agree.

This is an appeal from the decision of a judge given pursuant to s.24(1) of the Liquor Act on appeal from a decision of the Liquor Appeals Tribunal. Both the primary appeal and the appeal to this Court are competent only on the ground of error of law. An appeal from that decision lies to this court only on the ground of error of law. The matter has been argued only by the appellant and the first respondent ("the respondent"). The second respondent ("the Chief Executive") appeared merely to advise that he would abide the order of the Court.

It is contended on behalf of the respondent that the decision of the Liquor Appeals Tribunal was one of fact and does not demonstrate any error of law.

On 4 October 1994, an application was made on behalf of the appellant pursuant to s.59(1)(c) of the Liquor Act for approval to sell liquor on premises which might be shortly described as a detached bottle shop appurtenant to a general licence to sell liquor on licensed premises located 14.5 km away.

Under s.107 as it stood at the time of the application, the Chief Executive of the Liquor Licensing Division of the Department of Tourism, Sport and Racing had a discretion to grant such an approval. In exercising that discretion he was required to take into account matters specified in s.116.

Without such an approval it would be unlawful to sell liquor from the premises in question.

On 7 October 1994 receipt of the application was acknowledged and the applicant was advised of requirements under s.118(2) of the Liquor Act 1992 concerning advertising and proof of compliance with them. One of the objects of advertising was to enable objections to be lodged with the Liquor Licensing Division.

In the letter of acknowledgment the applicant was advised of the necessity to comply with various formal requirements. It is unnecessary to consider those requirements.

The application was duly advertised and there were a number of objections lodged. One of those objections was lodged by the respondent which operated a bottle shop as part of its licensed premises about 15 kilometres from the location of the applicant's proposed detached bottle shop.

On 8 November 1994, the Chief Executive asked Maroochy Shire Council if it would forward its comment and objections if any to the application within 14 days of that date - i.e. by 22 November 1994. Presumably this was done having regard to the provisions of s.117(2) of the Act which required the Chief Executive to give the local authority exercising planning control over the area in which the applicant's proposed bottle shop was located, an opportunity to object to or make comments upon the application.

A conference to consider objections was apparently held on 23 November 1994 although it does not appear that the Chief Executive had received any reply to his letter to Maroochy Shire Council by that time. On 29 November 1994, an officer of the Licensing Administration Unit signed and forwarded to the manager of that unit, a memorandum setting out briefly the progress of investigations, inquiries etc made by her. It pointed out that there was a distance of 14.5 km between the site of the proposed detached bottle shop and the licensed premises to which it would be appurtenant.

After stating very briefly the nature of the objections received and the applicant's submissions concerning the benefit to the community should the licence be granted, a recommendation was made in these terms:

"I would therefore recommend that the application be approved subject to the receipt of all outstanding documentation."

It seems that at that stage nearly all required documentation was "outstanding".

That memorandum was signed by the manager of the Licensing Administration Unit on 30 November 1994.

It appears from the memorandum that on 30 November 1994 it was also signed by the Executive Director of the Liquor Licensing Division (the Chief Executive) and under his signature the word "approved" was typed.

On 1 December 1994 the applicant's solicitor forwarded copies of advertisements, declarations etc required to be submitted to the licensing branch before an approval could be granted. Under cover of that letter, he undertook to forward further documents and duly completed forms "in the near future".

Interestingly the last paragraph of the letter reads:

"I thank you for your attention to this matter and look forward to your advice on whether preliminary approval is granted prior to 2nd instant."

The observation in the last paragraph of this letter is of interest because the Liquor Regulation 1992 was amended by the Liquor Amendment Regulation (No 2) 1994 S.L. No. 410 notified to take effect on 2 December 1994. Reg 6C(1)(c)(i) inserted by the amendment permits the approval of premises for use as a detached bottle shop under s.59(1)(c) for the sale of liquor only if those premises are located no more than 5 km from the premises for which a general licence is held. It is clear that the fact that the Chief Executive had signed above the word "approved" typed on the memorandum prepared for internal use of the Licensing Administration Unit on 29 November 1994 was not notified to either the applicant or to any of the objectors prior to 2 December 1994. Upon the assumption that the application had, in one sense, been "approved" subject to receipt of outstanding documentation that approval was not communicated before 6 December 1994.

On 6 December 1994 that the Executive Director advised the solicitor for the applicant for the first time, inter alia:

"I wish to advise that the matter has been considered by the Chief Executive and preliminary approval has been granted for the utilisation of the site for this purpose subject to:

Before the application can proceed to final approval the following outstanding requirements will need to submitted -

"Please forward the abovementioned documentation at your earliest convenience to enable this matter to be finalised.

As this approval may be rescinded if the lease is not executed within the required 30 day period, you are advised to contact this office as soon as possible should this not be possible."

By letter of 8 December 1994 the solicitor for the applicant made written submissions concerning, inter alia, the "community benefit" that would accrue should the application be granted. It is interesting to note that the memorandum of 29 November 1994 recommending approval of the application referred to the applicant's "submission regarding community benefit". The only written submission however that appears in the record is that in the letter of the applicant's solicitor of 8 December 1994. It may be that the submission to which reference is made in the memorandum of 29 November 1994 was an oral submission which was not reduced to writing before the letter of applicant's solicitor of 8 December 1994. There was no evidence that when granting the "preliminary approval" the Chief Executive was aware of the matters contained in that letter.

It is interesting also to note that in the last paragraph of that solicitor's letter of 8 December 1994 the Chief Executive was notified:

"The Maroochy Shire Council is meeting on 22nd instant and I understand that the use of the proposed detached bottle shop will be approved at that meeting."

By letter of 13 December 1994, the Chief Executive again requested the Maroochy Shire Council to forward its comments/objections to the application for approval of the detached bottle shop within 14 days of that date i.e. before 27 December 1994.

In fact it was not until 23 December 1994 that the Maroochy Shire Council advised in writing that at a meeting held on 20 December 1994 it had decided to raise no objection to the grant of approval.

It emerges from the material that it was on 21 December 1994 that the Chief Executive formally granted the application. He sent a notification to this effect to objectors on 22 December 1994 advising of their right to appeal against his decision.

The Chief Executive formally notified the appellant by letter dated 23 December 1994 that its application for approval to use the detached bottle shop for the sale of liquor had been granted.

The respondent as objector appealed pursuant to s.30 of the Liquor Act against that decision.

The Liquor Appeals Tribunal allowed the appeal. The grounds upon which the appeal was allowed essentially were two:

(i) The Act made no provision for the granting of a preliminary or conditional approval or of an approval in principle. The Tribunal determined that as a matter of fact the application had not been approved on 30 November 1994 when the Chief Executive made a note to that effect on the internal memorandum, to which I have referred. For reasons set out at length, the Tribunal determined that the appending of his signature by the Chief Executive above the words "approved" on the internal memorandum on 30 November 1994 which was not notified to either the applicant or the objectors did not amount to a final disposition of the application and was not a valid approval pursuant to s.59(1)(c) of the Act as it stood at that time.

(ii) The Tribunal also dealt with the contention that the applicant in the circumstances had a right protected by s.20 of the Acts Interpretation Act. It held that there was no accrued right in the applicant to have the appeal determined in accordance with the provisions of the Act and Regulations of 1992 which were superseded by the amendments effected on 2 December 1994. It will be recalled that although the Act and Regulations in force at the time the application was made placed no limitation on the distance between licensed premises and a detached bottle shop, the amendment to the Liquor Regulations of 2 December 1994 specifically provided that that distance should not exceed 5 kilometres. The Tribunal was bound by the law as it stood after the Liquor Act and Liquor Regulation were amended on 2 December 1994 when making a determination of the application subsequent to that date.

The applicant appealed as I have indicated to a judge of the Supreme Court pursuant to s.24(1) of the Act; the appeal was limited to error of law on the part of the Tribunal. That appeal was dismissed. The applicant now appeals on points of law to this Court and advances two matters which were determined against it by the Tribunal:-

(i) That in fact the appending of his signature on 30 November 1994 by the Chief Executive upon the internal memorandum dated 29 November 1994 above the words "approved" did amount to an approval by the Chief Executive within the meaning of s.59(1)(c) of the Liquor Act - even though it was not communicated either to the applicant or to any of the objectors prior to the amendment of the Liquor Act and Liquor Regulations on 2 December 1994; and in the alternative

(ii) the decision to approve was made on 30 November 1994, albeit that it might be described as a decision to give a provisional or conditional approval, and under s.20 of the Acts Interpretation Act the second respondent was then able to "perfect" that decision by giving notice of it subsequent to the change in law that occurred on 2 December 1994, which would have admittedly prevented the grant of an approval of the application after that time.

Stated briefly it is contended that the uncommunicated decision reached on 30 November 1994 gave the applicant an accrued right protected under s.20(2) of the Acts Interpretation Act to have that decision communicated and thereupon become perfected as an approval given prior to 2 December 1994.

The respondent contends that whether there was an approval within the meaning of s.59(1)(c) of the Liquor Act is a question of fact to be determined upon consideration of the documentary evidence placed before the Tribunal; the Tribunal's determination that it was not an approval within that section is simply a determination of a fact and no appeal lies either to a judge of the Trial Division or to this Court from that determination by virtue of s.24(1) of the Liquor Act unless it involves an error of law.

In my view, whether the appending of his signature by the Chief Executive upon an internal memorandum within the Licensing Branch uncommunicated to either the applicant or any other person interested in the outcome of the application without any other fact is capable in law of amounting to an approval within s.59(1)(c) of the Act is a matter of law. The intention of the second respondent when appending his signature above the word "approved" on the internal memorandum recommending approval was not in issue. He gave no evidence. The Tribunal of course considered that endorsement in the context of other documents and in the absence of any other evidence concluded as a matter of fact that it was not a final decision under s.59(1)(c). To the extent that the making of a final decision is a matter of fact, that fact was determined against the appellant by the Tribunal and the learned judge upon appeal found that there was evidence capable of supporting that finding. Such a finding could be disturbed only if -

(a) there was no evidence to support the inferences upon which it depended; or

(b) if the inferences which could be supported by the evidence were incapable of supporting the finding.

See The Australian Gas Light Co v. Valuer General [1940] NSWStRp 9; (1940) 40 SR NSW 126 at p. 138 per Jordan CJ.

Before this Court it was contended on behalf of the respondent that indeed upon the only evidence before it, the Tribunal could not have held as a matter of law that there was in fact an approval prior to 2 December 1994. In my view this contention is correct.

It is convenient however to deal with two matters argued on behalf of the appellant separately although of course there are considerations which are common to each.

(1) WHETHER THE APPLICATION WAS "APPROVED" BY THE NOTATION MADE ON 30 NOVEMBER 1994.

The appellant contends that the finding of the Liquor Appeal Tribunal that the Chief Executive did not on 30 November 1994 finally approve the application for approval was based on "errors of principle".

The appellant contends that the Tribunal should have found that on 30 November 1994 the Chief Executive granted a conditional approval - i.e. a final approval that would be vacated in the event that the appellant failed to comply with the required conditions.

Essentially whether in the context of all the other correspondence emanating from the Licensing Branch subsequent to 30 November 1994 the appending of the signature above the word "approved" typed on the memorandum of 29 November 1994 amounted to a final approval within the meaning of s.59(1)(c) of the Act is a matter of inference to be drawn from the terms of all the documentary evidence placed before the Tribunal. There was no oral evidence called on this issue.

"The Tribunal was rightly critical of the department's use of the term 'preliminary' approval in circumstances where the Act makes no provision for such an approval. It however correctly appreciated that the use of the term did not determine the issue which it was required to address. The Tribunal concluded and in my view the conclusion was open, that the tenor of subsequent departmental correspondence and activity was that there was no final approval until 21 December 1994 and the department so advised the appellant by its letter of 23 December which enclosed the licence document duly endorsed ....

By letters dated 22 December 1994 the department advised objectors that the Chief Executive Officer had determined to grant the application on 21 December and informed them that they would 'now be eligible to appeal' pursuant to section 30 of the Act ...

It was in my view open to the Tribunal on the material before it to conclude as a matter of fact as it did that the 30 November notation was not a final disposition of the appellant's application. That being so to establish error of law requires it to be demonstrated that the Tribunal's decision reflects an error in identifying an applicable principle or the application of such a principle. In my view that has not been done."

In my view the learned judge on appeal was correct in his analysis of the contention advanced by the appellant. I am unpersuaded that the appellant has demonstrated any error in principle on the part of the Tribunal. I am of the view that the learned judge on appeal was correct in so holding.

Upon the evidence before it, it was open to the Tribunal to make the finding which it did.

Indeed there is strong authority in my view for the proposition that until at least notification of a decision is given to an interested party or until some formal public record is effected, no final decision can be said to have been made. Until the decision maker notifies an applicant of the decision made upon his application either personally or by a form of public notification, he has a locus poenitentiae to alter or vary that decision.

In this respect I refer to what was said in Ex Parte Renouf [1924] NSWStRp 47; (1924) 24 SR NSW 463 per Street A.C.J. at p. 466:

"That a council has power in the ordinary course of carrying on its business to rescind or vary its resolutions is undisputed. It could not carry out its duties effectively without that power, but it is contended that, in the circumstances of this case, it was bound by the decision to which it came on the 1st April, and that it acted in excess of its powers in afterwards purporting to recall or revoke it. I am unable to agree. Reliance was placed upon the use of the word decision in the Act, and it was urged that in passing a resolution of approval the council had in fact decided the matter, and that, having done so, it then became functus officio. I do not attach any particular significance to the use by the Legislature of the word decision. It has used a word which, was pointed out by Lord Halsbury, L.C. in Ex parte County Council of Kent and Council of Dover ([1891] 1 Q.B. 725 at p. 728), is a popular and not a technical or legal word, and all that was intended was, I think, that the council should consider applications, and, after considering them, should determine what was to be done in respect of them. Before a decision on an application has been communicated to the applicant, and, therefore, before it can have been acted on in any way, I can see no reason why the council should not reconsider any determination it may have come to. Without alleging anything in the nature of want of good faith, circumstances will readily suggest themselves in which in the interests of good municipal government it would be proper and desirable that an application should be reconsidered, and it would be unreasonable that the council should not have the power of reconsideration."

"It seems to me that it does not necessarily follow that the council has approved or disapproved merely because it has passed a resolution to that effect. The Legislature, in framing division 2 of the Act, with the obvious general intention of giving councils the power to regulate, and to some extent control, the subdivision of land for sale in building areas, must be supposed to have intended that councils should perform their functions under practical conditions. It is true that approval or disapproval by a council must find mechanical expression in the first place in a resolution at a council meeting, but the expressions "approve" or "disapprove," as they occur in s. 331(2) and (4) imply a condition of mental consciousness in which determination follows upon some process of reasoning based presumably on facts. It is not a mere mechanical act that is contemplated.

Reading s.331 with the necessary connotation of its several subsections, and in its necessary context, with the division in which it occurs, and also with the provisions of the ordinances relating to reconsideration of matters dealt with in past resolutions, I am led to the conclusion that approval or disapproval within the meaning of s. 331 is a composite act of which the notice is an essential part: that is to say, that the approval or disapproval is not complete for the purposes of s. 331, until notice of it has been given officially, in whatever form is usual for that purpose. Until this has been done, there does not appear to me to be a complete statutory expression of the decision that the council is called upon to give."

There are many authorities to support the proposition that a council once having notified a decision cannot rescind or vary it. In this respect I refer only to Ex Parte Forssberg; In re Council of the Shire of Warringah [1927] NSWStRp 19; (1927) 27 SR NSW 200.

In my view as a matter of law it could not be said that the Chief Executive had approved the premises in question for the sale of liquor pursuant to s.59(1)(c) until he had communicated that approval to the applicant. I take the view that communication is essential to constitute a valid binding decision whether that decision be categorised as preliminary, conditional or final.

The effect of non-communication of the so-called preliminary approval prior to 2 December 1994 was not addressed before either the Tribunal or the judge on appeal. In my view had that fact been addressed it would have been fatal to the contention that in fact an approval of any kind had been "given" on 30 November 1994.

(2) WHETHER THE INDICATION ON THE MEMORANDUM OF 29 NOVEMBER 1994 TO THE EFFECT THAT THE APPLICATION WAS OR WOULD BE APPROVED GAVE THE APPLICANT ANY RIGHT PROTECTED BY THE ACTS INTERPRETATION ACT BEFORE THE CHANGE IN THE LAW WHICH TOOK EFFECT ON 2 DECEMBER 1994 PREVENTED THE GIVING OF APPROVAL.

The first matter for consideration is whether upon the appending of his signature to the memorandum in question on 30 November 1994 the Chief Executive gave the appellant an immediate right ultimately enforceable in court to the grant of approval for the use of the premises in question for the purpose of a detached bottle shop.

Let it be assumed that in some way the appellant had learnt that the Chief Executive had placed his signature above the word "approved" typed on the bottom of the memorandum but had then had a change of heart - perhaps upon receipt of information and documentation concerning the application which was still outstanding; or let it be assumed that having placed his signature on the memorandum indicating an intent to approve the application, it was drawn to his attention that on 2 December 1994 the law would change so that after that time approval could not be given. It must be the contention for the appellant that in both cases the Chief Executive could be required prior to 2 December 1994 to formally approve the use of premises applied for.

Upon the facts of this case the appellant applied to the Chief Executive for the exercise of a discretion which if exercised in its favour would give it a right or privilege. If the Chief Executive declined to exercise his discretion in favour of the applicant no right or privilege would come into existence.

In essence it is the contention of the appellant that because its application was made when it would then have been lawful for the Chief Executive to approve the use of the relevant premises for a detached bottle shop and although there had been no final decision made enforceable against him, and indeed material relevant to the making of a final decision had not yet been placed before him, s.20 of the Acts Interpretation Act gave him a right to an exercise of discretion in his favour merely on the ground that his application had been made before the change in law occurred on 2 December 1994 prohibiting the exercise of discretion in the way applied.

For an approval to be valid and create rights in the person receiving it, it must be final. In City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332 it was observed:

"For this purpose it is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application: the consent must be either refused or granted unconditionally or granted subject to conditions."

Section 20(2) of the Acts Interpretation Act provides:

(c) affect a right privilege or liability acquired accrued or incurred under the act or

(e) affect an investigation proceeding or remedy in relation to a right privilege liability ... mentioned in paragraph (c) ...".

In my view it is clear that unless a decision was made prior to 2 December 1994 under the law as it then stood no right or privilege could arise which would be protected under s.20(1)(c). This is not a case where steps had been taken to vindicate or enforce a right which existed prior to the change in the law on 2 December 1994. It is case where no right or privilege arose unless there was a valid decision made upon the appellant's application prior to 2 December 1994. The fact that the appellant may have held some hope or expectation in relation to gaining the approval for which he had applied is not sufficient to attract the protection of s.20 - see Director of Public Works v Ho Po Sang [1961] UKPC 22; (1961) AC 901, Robertson v City of Nunawading [1973] VicRp 81; (1973) VR 819, Ungar v City of Malvern [1979] VicRp 25; (1979) VR 259 and the recent decision of this court in Kentlee Pty Ltd v Prince Consort Pty Ltd and Chief Executive of the Department of Tourism, Sport and Racing and Liquor Appeal Tribunal Appeal No. 128 of 1995 (unreported) judgment delivered on 2 April 1996.

In Kentlee this court considered exhaustively the authorities touching on this point. In particular it analysed the judgments in Esber v The Commonwealth of Australia (1992) 147 CLR 430, Newell (1936) 55 CLR 707, and NSW Aboriginal Land Council v The Minister (The Winbar Claim) (1988) 14 NSWLR 685.

After a detailed examination and analysis of the authorities, including Esber and Ho Po Sang, Fitzgerald P at p.16 of his judgment after considering observations of Brennan J in Esber and judgments in Ho Po Sang (supra) said:

"As I read his Honour's judgment (i.e. the judgment of Brennan J as he then was in Esber) he was categorically of the view that a request application or claim for an administrative approval or other benefit under an enactment does not create a right to have the proceedings so commenced completed under the enactment after its repeal. It should be added however that the circumstances with which his Honour was there dealing were not concerned with a situation in which any conditions on which the grant of the approval or other benefit depended had been satisfied before the repeal of the enactment and had the enactment not been repealed the decision maker would have been legally obliged to grant the approval or other benefit."

However although the matter is not entirely clear and need not be decided for present purposes the continuation of Brennan J's judgment might indicate that even in the circumstances last mentioned, he was of opinion that an applicant has no right to have his or her application continued and completed under the old law.

"I can discern nothing in Esber or in the other cases since Ho Po Sang which suggest that its authority is in any respect qualified or impaired. Ho Po Sang and the cases which follow it in my opinion definitely reject the statutory "right" which Kentlee relies on in this case as an "accrued" or "acquired" right which by the operation of subsections 20(2)(c)(e) and (3) of the Acts Interpretation Act entitles Kentlee (or Prince Consort) to have the application for the Chief Executive's approval considered and decided by reference to the former s.153 of the Liquor Act. The material provisions of the Acts Interpretation Act (subsections 20(2)(c)(e) and (3)) are founded on the premise that at the time of the repeal there is an "accrued" or "acquired" right albeit one which may yet have to be established by demonstrating matters on which the right depends even matters which involve opinion and value judgments and perhaps even criteria controlled discretion. But the position is otherwise where as in the present case the discretion is effectively at large."

In the same case, Dowsett J at p. 11 dealing with the facts of that case observed:

"In other words, as in Ho Po Sang (supra) the act or process suffered done or begun is not affected, but it cannot be carried to completion if the law in its amended form does not allow of that course.

In Kentlee this Court considered the effect of an amendment to s.153 of the Liquor Act on 2 December 1994 upon the rights of an applicant who had applied for approval of a sub-letting of part of licensed premises prior to that date. Prior to the amendment the Chief Executive had a discretion to approve such a sub-letting. Subsequent to the amendment however any sub-letting was totally prohibited. The applicant sought approval for a subletting prior to 2 December 1994. No decision had been made upon this application prior to the amendment of s.153. On 12 December 1994 the Chief Executive refused the application apparently on the ground that after the amendment of 2 December 1994 his power to approve a sub-letting was lost and therefore the application made for approval prior to the amendment was dismissed. The point determined in Kentlee was almost on all fours with the point, albeit under a different part of the legislation, to be determined upon this appeal.

In the light of the decision of this Court in Kentlee in my view it would not be profitable to embark once more upon consideration of the authorities exhaustively considered in that case. I treat the decision in Kentlee as one that ought be followed in this case. The ratio of Kentlee which applied Ho Po Sang was that expressed shortly by the President. Applying that rule it cannot be said in my view that in making the application for approval prior to the change in law on 2 December 1994 which prevented the granting of an approval of that kind the appellant acquired any right to have the Chief Executive exercise his discretion in its favour and grant an approval which subsequent to 2 December 1994 he had no power to grant.