Fokas v Kogarah RSL Club Ltd

COUNSEL : N/A Ms Fokas (Plaintiff in person) SOLICITORS : Mr Sherif Mouskkassa (Defendant) CATCHWORDS : Summary judgment - Appeal from Liquor Administration Board Supreme Court Rules - Part 15 r 26 LEGISLATION CITED : Registered Clubs Act 1976 - s 17AA; s 42(2)(a) Liquor Act 1982 - s 104 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) CASES CITED : Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 DECISION : (1) These proceedings be struck out; (2) The plaintiff is to pay the defendant's costs as agreed or assessed

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT (Summary judgment; appeal from Liquor Administration Board) 1 MASTER: By notice of motion filed 21 August 2002 the applicant seeks an order that the proceedings be struck out pursuant to Part 15 r 26 of the Supreme Court Rules (SCR), or alternatively that the court give directions. By amended summons filed 27 August 2002 the respondent seeks an order that the matter be remitted to the Licensing Court of New South Wales, Sydney for review with the decision of this court pursuant to s 42(2)(a) of the Registered Clubs Act 1976. The plaintiff/respondent relied on her affidavits sworn 20 August 2002. The applicant/defendant relied on the affidavit of John Howard sworn 20 August 2002. The plaintiff was not legally represented. 2 The plaintiff lodged a complaint with the Liquor Administration Board. The complaint stipulated that it was pursuant to Section 17AA of the Registered Clubs Act 1976 of s 104 of the Liquor Act 1982. The Liquor Administration Board directed the parties to attend a number of conferences in order to attempt to resolve the dispute. The Board ultimately finalised the complaint on 18 July 2002, and stated that it was not satisfied that the material lodged by the respondent established an undue disturbance to the quiet and good order of the neighbourhood. It is from this decision that the plaintiff appeals. 3 An appeal from the Liquor Administration Board lies to the Supreme Court on a question of law. Section 42 of the Registered Clubs Act 1976 provides that a person aggrieved by an adjudication of the Licensing Court in proceedings under this Act may appeal therefrom to the Supreme Court on a question of law. On the determination of an appeal under subsection (1), the Supreme Court shall either remit the matter to the Licensing Court with the decision of the Supreme Court, or make such other order in relation to the appeal as it thinks fit. An appeal shall be made in accordance with the rules of court of the Supreme Court.

The law in relation to summary judgment 4 The application before the court is one seeking summary judgment. 5 Part 15 r 26 provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 6 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 7 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that:

"Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 8 According to their Honours, this is because:

"It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities" (at 58). 9 Similarly, in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 10 In General Steel Barwick CJ, who heard the application alone stated at 130: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 11 Barwick CJ also said at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'." 12 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 13 According to Rolfe AJA in Zarb at 15-16: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241."

The decision of the Liquor Administration Board 14 As previously stated, on 18 July 2002 the complaint to the Liquor Administration Board was finalised. The Board was not satisfied that the material lodged by the complainant established an undue disturbance to the quiet and good order of the neighbourhood. The complaint was finalised subject to the following, previously imposed conditions: "The LA 10* noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz - 8kHz inclusive) by more than 5dB between 07:00am and 12:00 midnight at the boundary of any affected residence. Notwithstanding compliance with the above, the noise from the licensed premises shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 07:00am. For the purpose of this condition, the LA10 can be taken as the average maximum deflection of the noise emission from the licensed premises. This is a minimum standard. In some instances the Board may specify a time earlier than midnight in respect of the above condition. Interior noise levels which still exceed safe hearing levels are in no way supported or condoned by the Liquor Administration Board . * To ensure the orderly departure of members and guests and that disturbances do not take place in the English Street car park:- - a staff member is to be permanently stationed in the car park from 10:00 pm until the last car has left the car park; and - random staff patrols of the car park should be undertaken prior to 10:00pm. No party to the Section 17AA proceedings is to make known to any other person not being a party the names or addresses of any other party in the proceedings; in particular, no member of the premises is to be informed either directly or indirectly of the identity or location of any complainant. The club is to take all reasonable steps to ensure that visitors, staff, members and guests do not leave vehicle engines running in the car park and to publicise to members the fact that this should not take place. The club is to take reasonable steps to identify car users identified to it by the complainant as leaving engines running in the car park and to take reasonable steps to prevent such users leaving engines running in the car park and to take reasonable steps to prevent such users leaving their vehicles running in the car park. The staff members patrolling the car park under the terms of the condition marked "*" are to patrol the boundary of the club and the complainants property to ensure that patrons do not urinate in the car park."

15 The plaintiff's oral evidence is that she has lived next door to the Club for 30 years and up until about 1995 they had co-existed peacefully, and she had never made a complaint to the Club. Towards the end of 1993 the Club carried out renovations which included the widening of the back door to the Club and an expansion of the car park from 15 to 40 parking spaces. Because the back door was used during the renovations, the patrons developed a custom of using the back door to enter the club. This custom continues to this day. It seems that the back door is located in close proximity to the plaintiff's house. Further, since 1993 the number of activities conducted by the Club have increased. After the renovations and complaint some machinery has been moved to a higher location which creates more noise than was previously the case. Apparently, there is another machine which although it does not create noise, it causes vibrations at night so that the plaintiff has difficulty sleeping. After enduring a period of lack of sleep she develops asthma. 16 The respondent in oral submissions complained that the decision does not work at all. At the conclusion of the hearing in this court, the plaintiff said in oral submissions that the Chairman should not have bothered with conferences, but proceeded straight to a hearing. The plaintiff relied on section 108 of the Registered Clubs Act which she asserted provides that upon the making of an authorised complaint, a licensing or other Magistrate, or the Principal Registrar, may summon the licensee or other person to whom the complaint relates to appear before the Licensing Court to answer the complaint and show cause why disciplinary action should not be taken under section 109. Unfortunately this avenue is not available to her, as sections 108 and 109 of the Act have been repealed.

17 The defendant submitted that the summons filed by the respondent should be struck out on the grounds that the respondent purports to appeal on a question of fact not law. The applicant further submitted that the alleged contraventions alleged by the respondent occurred, if at all, after the determination of the Liquor Administration Board and are therefore not matters which can be dealt with as an appeal. 18 Section 17AA (3) of the Registered Clubs Act provides that: "The conference is to be presided over by a member of the Board who may, in relation to a registered club's certificate of registration, after giving each complainant present and the registered club (if a representative is present) a reasonable opportunity to be heard in relation to the complaint: (a) impose, vary or revoke conditions to which the certificate of registration of the club is subject, or (a1) cancel or suspend the functions authority of the club, or impose, vary or revoke conditions to which the functions authority of the club is subject, or …"

19 For the purposes of appeals pursuant to Part 5 of the Registered Clubs Act, a decision of the member of the Liquor Administration Board presiding at a conference pursuant to s 17AA(1) of the Act is to be taken to be an adjudication made by a licensing magistrate sitting alone (s 17AA(7) of the Act). The Member had a discretion to convene a conference or conferences and has imposed conditions on the Club as authorised in s 17AA(3)(1). The Member was entitled to adopt this course. The plaintiff made a complaint to Liquor Administration Board pursuant to s 17AA. As previously stated, the plaintiff's application also refers to s 104 of the Liquor Act 1982. Even if the plaintiff had made a complaint under s 104 the Board is empowered under this section to convene a conference. There is no error of law. 20 The events that the plaintiff complains about in this court are alleged breaches which have allegedly occurred after the decision was made. As such they cannot constitute an error of law. The plaintiff also stated that she did not agree with the independent expert's assessment of the noise. This is a factual issue not a legal one. An appeal does not lie from a matter of fact. 21 The applicant complains that the previously imposed conditions are not being complied with. Section 17(1AA)(a)(xiv) of the Registered Clubs Act provides that a complaint may be made on the grounds that the club has failed to comply with a condition to which its certificate of registration is subject. The plaintiff may have some other remedy other than an appeal on a question of law to this court so would benefit from seeking legal advice prior to taking any further legal action. 22 It is my view that the plaintiff's case is doomed to failure. It would be futile to grant further leave to amend the amended summons. It is unnecessary to consider the other issues raised in the notice of motion. 23 I make orders in accordance with Paragraph 1 of the notice of motion filed 24 August 2002. Costs are discretionary. Costs usually follow the event. The plaintiff, Maria Fokas, is to pay the costs of Kogarah RSL Club Limited as agreed or assessed. 24 The court orders that:

(2) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

Last Modified: 12/16/2002 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.