Court of Appeal (WA)|2001-12-07|Before: Dr J, Wallwork J, Templeman J, Einfeld AJ

Highway Hotel Pty Ltd & Ors v The City of Bunbury & Ors [2001] WASCA 385 (7 December 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HIGHWAY HOTEL PTY LTD & ORS -v- THE CITY OF BUNBURY & ORS [2001] WASCA 385

HIS HONOUR, JUDGE RODNEY GREAVES, LIQUOR LICENSING COURT

Prerogative writs - Order nisi for writ of certiorari refused - Serious delay in bringing application - Applicants had taken other action to bring matter to notice of authorities - Whether delay explained satisfactorily

Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of CALM (1997) 18 WAR 126

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

Edwards & Nosworthy (1997) 90 A Crim R 571

Ex parte McKenna (1989) 2 WAR 401

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1984) 155 CLR 211

R v City of Tea Tree Gully; Ex parte Concrete Systems Pty Ltd (No 2) (1986) 65 LGRA 67

R v Herrod; Ex parte Leeds City District Council [1976] 1 QB 540

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] 1 WAR 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

Titelius v Public Service Appeal Board [1999] WASCA 19; (1999) 21 WAR 201

1 WALLWORK J: These are reasons for judgment after the hearing of an appeal from a decision of the Judge of this Court dismissing an application for an order nisi for a writ of certiorari. The appellants are seeking to set aside a certificate given pursuant to s 40 of the Liquor Licensing Act 1988 ("the Act") by the first respondent on 24 September 1997 and also a tavern liquor licence granted on 17 April 1998 by the second respondent to the third respondent.

2 The appellants contend that that the existence of a "valid" s 40 Certificate was a condition precedent to the exercise of jurisdiction by the second respondent to grant the relevant tavern licence. The s 40 Certificate is said by the appellants to be "void" in that its issue is said to reveal a fundamental error of law, or alternatively, constituted the exercise of a power so unreasonable that no reasonable person or authority could have exercised it; further, that it was not authorised by the enactment pursuant to which it purported to be made; or 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 first and second respondents indicated before the learned Judge hearing the application for the order nisi that they would abide the decision of the Court.

4 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 had been guilty of delay in objecting to the s 40 Certificate and because they had failed to avail themselves of the alternative statutory remedy of appeal provided by the Act.

5 In 1996 the third respondent purchased the relevant premises at Lot 8 Ocean Drive, Bunbury ("the premises") which were then used as a restaurant. The zoning of the premises was for restaurant use and the restaurant had a liquor licence.

6 In 1997 the third respondent applied to the second respondent for a tavern licence. On 24 September 1997 an officer of the first respondent ("the City") 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 that time the City's town planning scheme provided that the premises were zoned "special use", and that the permitted use was restaurant only. Further, certain "development conditions" attached to the premises.

7 The learned Judge found that it was not clear how the relevant s 40 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".

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

9 In "mid 1998" according to Mr Daqui, a director of the third respondent, an officer of the City 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.

10 In July 1998 the third respondent applied for planning approval for an extension to the premises. The approval granted by the City made it clear 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.

11 In September 1998 it came to the notice of solicitors for the appellants that the premises were zoned for restaurant use only. Although the appellants 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 the Certificate at face value.

12 The solicitors for the appellants wrote to the City on 29 September 1998 and to the Minister for Planning on 19 November 1998 seeking to have the zoning enforced.

13 In January 1999 the letter from the third respondent's solicitors to the City contained references to certain correspondence which the learned Judge found made 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 impermissibility of the premises being used as a tavern pursuant to the Town Planning Scheme.

14 On 24 February 1999 the City 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 unsuccessfully sought an injunction seeking to restrain the City from proceeding against it pursuant to the notice of contravention. In April 1999 the appellants applied for and obtained an order nisi for a writ of mandamus directed to the City with the purpose of forcing it to prosecute the third respondent.

15 The learned Judge from whom this appeal is brought, found that at a conference on 3 May 1999 the solicitors for the appellants first advised their clients that it would also be possible to attack the grant of the tavern licence on the basis of the inaccuracy of the s 40 Certificate. An application for an order nisi for certiorari was eventually made on 25 October 1999, nearly six months after the receipt of that advice.

16 The Judge said that during the delay of almost six months between the receipt of the advice concerning an order nisi and the application for the order in October 1999, there had been changes in ownership of some of the applicants and in the ownership of certain other hotels, the licensees of which were contributing towards the costs of the proceedings. The Judge was invited to infer that those changes might have led to some revisiting of the desirability of the proceedings and of the manner in which they would be funded.

17 The learned Judge found that it was at least arguable that the content of the relevant s 40 Certificate required a determination by the City as to the relevant planning law and as to its application or potential application to the proposal before the licensing authority. Further, it was arguable that the determination of the content of the Certificate was a determination as to legal rights rather than a truly "ministerial" act. The Judge also found that it was 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 then there had been no material capable of grounding the relevant "satisfaction" under s 37 of the Act for the granting of the licence.

18 The learned Judge also found that it was very doubtful whether an appeal would lie to this Court from the decision of the Liquor Licensing Court and that the jurisdictional challenge to that Court's decision was properly made by way of certiorari and not by way of appeal.

19 Under the heading "discretionary considerations" the learned Judge said that "the applicants have been guilty of serious delay in bringing this application". The Judge referred to the observations made by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 concerning the circumstances in which an extension of time for bringing applications for orders for review of administration decisions will be granted pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and said that it appeared that the considerations set out by Justice Wilcox in that decision are in general appropriate to be considered in relation to an application for a writ of certiorari.

20 Significantly the learned Judge found that the appellants had not "slept on their rights" and had been taking a variety of courses designed to ensure that the true effect of the relevant town planning legislation, as they perceived it, was brought to the notice of the third respondent and of the relevant authorities. Also, the third respondent had been aware for some considerable time of the appellants' view that the third respondent was not permitted to use the premises for the purposes of a tavern. The third respondent also knew that from late June 1998 the first respondent had opposed the operation of the premises as a tavern.

21 With respect to the question of prejudice to the third respondent, the Judge found that there was clearly likely to have been some expenditure incurred by the third respondent as a result of its obtaining the tavern licence and before it was made aware of any assertions that the premises could not be used for the purposes of a tavern. However, it appeared that it was "in mid-1998", relatively soon after the grant of the licence, that the effect of the relevant zoning had been raised with Mr Daqui by the City. Also, from early 1999 it had been very plain that there was an issue about the third respondent's ability to operate the premises as a tavern. Further, it was not clear how much of the work which had been done on the premises was directly related to the need to adapt the premises for use as a tavern. The Judge found that although there had been some prejudice occasioned by the delay, it was difficult to quantify and it did not appear to be substantial.

"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."

23 Having made these observations and findings, the learned Judge said at [34]:

"The most difficult question in relation to the applicant's delay for present purposes stems from the six 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 three months of the period between receiving advice in May and bringing these proceedings in October."

24 The Judge referred to the reasons of White J in Re Minson; Ex parte South West Forest Defence Foundation, unreported; SCt of WA; Library No 930643; 25 November 1983, where consideration had been given to what would constitute a "satisfactory" account of the delay for the purposes of O 56 r 11 of the Supreme Court Rules. In the course of those reasons White J adopted the view expressed earlier 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 as to why the entire period of delay occurred and not merely explain some part of the delay."

25 In Minson, White J had referred to the decision in Halliwell v The Australian Builders Labourers Federated Union of Workers, unreported; SCt of WA; Library No 7836; 7 September 1989 at 11 - 12.

26 The learned Judge from whom this appeal is brought concluded:

"I see no reason to depart from the views expressed in those cases. The applicants 'account' of the final six 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. This application must be dismissed."

27 At the hearing of this appeal the City and the second respondent again took a non-adversarial role. Also the grounds of appeal were amended and certain appellants were substituted, subject to the condition that the parties replaced remain liable for any appropriate costs orders.

28 Although it was argued strongly to the contrary, it is in my view apparent from the wording of the last paragraph of the reasons for judgment quoted above and from the content of the reasons for judgment generally, that the learned Judge decided to dismiss the application for the order nisi because the Judge was not satisfied that the delay had been satisfactorily accounted for and was "therefore unable to grant the order sought".

29 A question therefore arises as to the effect of the words in O 56 r 11(1) of the Rules that:

"An order nisi for a writ of Certiorari ... shall not be granted unless the application for the order is made within six months after the date of the judgment, order, conviction or other proceeding, .... or ... the delay is accounted for to the satisfaction of the Court to which the application is made."

30 It was submitted for the third respondent that if the delay was not accounted for to the satisfaction of the Court, then the discretion to grant the order was not enlivened.

31 In Savage v Teck Explorations Ltd, unreported; FCt of WA; Library No 7285; 16 September 1988, Malcolm CJ said:

"Order 56 r 11 of the Rules of the Supreme Court requires an application for an order nisi to be made within six months after the date of 'the judgment', order, conviction or other proceeding ... No doubt there is a discretion to extend the time under O 3 r 5."

32 Order 3 r 5 of the Rules of the Supreme Court provides:

"(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules, or by any judgment, order, or direction, to do any act in any proceedings.

(2) The Court may extend any such period as referred to in par (1), although the application for extension is not made until after the expiration of that period.

(3) ...

(4) ..."

33 In Ansell v Wells [1982] FCA 186; (1982) 63 FLR 127, which was concerned with a decision of the Promotions Appeal Committee under the Public Service Act 1922 (Cth), Lockhart J said at 155:

"In the exercise of its discretion the Supreme Court refused to grant an order of certiorari because of the very large delay of the appellant. Mere delay generally will not debar a plaintiff from obtaining discretionary relief. ... However, length of time may be evidence of assent or acquiescence; ... Delay, coupled with prejudice to the defendant or a third party, may debar a plaintiff from discretionary relief."

34 In R v Secretary of State for the Home Department; Ex parte Ruddock & Ors (1987) 1 WLR 1482, a decision concerned with an application for judicial review of a warrant to monitor the applicant's telephone calls, and in which the relief claimed had originally included an order for certiorari and two declarations, but which in the end sought only one declaration, Taylor J said:

"However, proceedings were not brought until 29 July 1985, so the further delay is in itself well over the three months maximum prescribed in RSC, O 53 r 4. It is said to be due to Ms Massiter's involvement in retraining as a gardener and her anxiety to be cautious in the drafting of her affidavit, which was not sworn until 12 July 1985. I have seriously considered what effect I should give to this further delay. I am unimpressed by the reasons for it. But I have concluded that since the matters raised are of general importance, it would be a wrong exercise of my discretion to reject the application on grounds of delay, thereby leaving the substantive issues unresolved. I therefore extend time to allow the applicant to proceed."

35 In Queensland Medical Laboratory & Ors v Blewett & Ors [1988] FCA 423; (1988) 84 ALR 615 which was concerned with an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for a review of a determination of the Minister for Community Services and Health under the Health Insurance Act 1973 (Cth) that a new pathology services table be substituted in Sch 1A to the Act, Gummow J said at 618:

"As will be apparent from the dates of the first and second decisions drawn into question, the proceedings, insofar as reliance is placed upon the ADJR Act, were instituted outside the prescribed period specified in s 11 of the ADJR Act. Accordingly, by motion filed 1 November 1988, AAPP sought from the Court what has been described as an extension of time within which it might lodge the application for review insofar as it relates to the first and second decisions I have mentioned ... Plainly, the general public importance of the issues sought to be raised make this a proper case for the grant of an extension of time."

36 In Re Smith; Ex Parte Rundle (1991) 5 WAR 295 which was concerned with the validity of a decision of a Minister to approve a proposed amendment to the Metropolitan Region Scheme, Malcolm CJ said at 319:

"The time limit in O 65 r 11(1) of six months has its justification in the need to act promptly in relation to proceedings to quash the decision of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid. The six months time limit was introduced in England in 1740 by the statute 13 George II, c18 s5 which provided that no certiorari should issue for the removal of orders made by Justices of the Peace after six months. The court had no discretion to extend time: see R v Anglesea Justices (1846) 10 Jur 817. The 1740 statute was repealed by the Statute Law Revision Act 1888. The Court has an express power to extend time under the rule. In my opinion it is, at the least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals. If it does not, the rule would not apply to a decision such as that made by the Minister in the present case. Even if the rule does not apply, however, the nature of the remedy of certiorari is such that the Court would require it to be sought promptly. This is not a case in which the applicants had delayed in raising any objection to the decision sought to be impugned ... Such delay as has occurred has been satisfactorily accounted for ..."

"The discretion to grant or refuse certiorari or prohibition in the exercise of discretion has been widely recognised in a number of cases in Australia ... In Savage v Teck Explorations Ltd, unreported; SCt of WA; Library No 7285; 16 September 1988 at 9, I acknowledged that:

'Where there has been an ordinate delay it would clearly be appropriate to refuse an order nisi as occurred in this case. Relief should be refused when the Court is satisfied that to grant the relief would cause substantial hardship to others or prejudice their rights.' "

"In my opinion it has not been demonstrated that any possible prejudice to Landcorp would outweigh the public interest in ensuring that the conditions precedent to the promulgation of an amendment to the MRS, to take effect as if enacted in the Scheme Act, have been observed. In the present context there is, in my opinion, an overriding public interest in maintaining the rule of law."

39 Pidgeon and Walsh JJ agreed with the reasons of the Chief Justice in that case.

40 In South West Forests Defence Foundation (Inc) v Lands and Forest Commission & Anor (1995) 86 LGERA 365 at 380, Anderson J said:

"In my opinion White J was correct to decide that there was no arguable case for writs of certiorari or prohibition on any of the above grounds. His Honour also held that the orders nisi should be refused in respect of these grounds because of delay in making the application for the orders nisi. I do not think it is necessary to consider whether his Honour was right to do so, although I am inclined to think that his Honour took a rather too severe view of the appellant's delay in the light of the fact that the appellant is a public interest litigant seeking to agitate these matters in the public interest with very limited resources. In such circumstances I think the Court will be more ready to excuse delay unless there is some clear evidence of actual prejudice."

41 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, which as stated above was referred to by the learned Judge in this case, was concerned with whether or not a film was a qualifying Australian film for the purposes of Div 10BA of the Income Tax Assessment Act 1936 (Cth) . There was a prescribed period of 28 days to make an application for a review of the decision. Although the final decision was given on 25 August 1983, the application for review was not filed until 29 December 1983 and not served until 15 February 1984 due to some misunderstanding. Wilcox J discussed the criteria by which a Court's decision to extend time for an application for review under s 5 of the Administrative Decision (Judicial Review) Act 1977 (Cth) should be exercised. His Honour referred to the fact that it was a precondition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation for the delay" and that it is "fair and equitable in the circumstances" to extend time. His Honour also said that action taken by the applicant, other than by making an application for review under the Act, was relevant to the consideration of the question whether an acceptable explanation for the delay had been furnished; further, a distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights" per Fisher J in Doyle v Chief of Staff (1982) 42 ALAR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. His Honour also said that any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, was a material factor militating against the grant of an extension of time and that the mere absence of prejudice was not enough to justify the grant of an extension of time. His Honour said:

"In this context public considerations often intrude. ... A delay which may result if the application is successful, in the unsettling of other people ... or of established practices ... is likely to prove fatal to the application.

"The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted."

"6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller at 534 - 535. In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J in Wedesweiller at 531, relating to the diversity of decisions to which review may be sought under the Act.

'... there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to the applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved.'

He went on to mention the reference to public interest made by Fitzgerald J in Lucic at 416.

It is in relation to the former category of cases, that is, those 'which affect only the immediate parties' that the approach adopted by Bray CJ in Lovatt v Le Gall [1975] 10 SASR 479 at 485 in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:

'If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the Court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension.' "

44 In the present case, although the learned Judge referred to the abovementioned comments of Wilcox J in Hunter Valley Developments Pty Ltd, it is my view that the final decision made by the learned Judge did not take the relevant considerations into account but was based on the fact that the delay had not been satisfactorily accounted for and therefore the order was unable to be granted.

45 The learned Judge had already decided that the applicants had not "slept on their rights" and had been taking a variety of courses designed to ensure that the true effect of the relevant town planning legislation as they perceived it was brought to the notice of the third respondent and the relevant authorities. Further, that the third respondent had been aware for a considerable time that the appellants had taken the view that the third respondent was not permitted to use the premises for the purposes of a tavern. Further, that any prejudice to the third respondent did not appear to be substantial. The learned Judge had found that there was "arguably merit in the substantial application" and that it was not a case which involved day-to-day matters of public administration, nor did it involve questions of fairness as between the applicants and other persons otherwise in a like position.

"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 (Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617 at 642 to 644.) that the discretion which the Court exercises at this stage is not the same as that which is called upon to exercise 'when all the evidence is in and the matter has been fully argued'.

47 The learned Judge had come to the conclusion that it was reasonably arguable that should the challenge to the s 40 Certificate succeed, the decision of the licensing authority might be liable to be quashed."

48 It is relevant that on 24 June 1999 White J had granted the appellants an order nisi for mandamus in proceedings against the first respondent which were aimed at forcing the first respondent to prosecute the third respondent. In the meantime, and on 3 May 1999, counsel had advised that it might be appropriate to also attack the tavern licence by means of a writ of certiorari.

49 With respect, although the learned Judge's findings are correct that the appellants' account of the final six months of delay was "partial, perfunctory and vague", the various applicable circumstances, including the appellants' various actions before the application for the order nisi, and the obvious difficulties involved in co-ordinating an application for a separate Supreme Court proceeding in addition to the mandamus proceedings on which they had already embarked, suggest to me that the order nisi should have been granted.

50 It is not thus necessary to decide whether the new evidence concerning the illness of Mr Sherrington should be admitted, although in view of the error which I think was made by the learned Judge in not taking all the relevant matters into account in the final decision, I would be inclined to admit the evidence concerning Mr Sherrington's illness if it was necessary to do so in order to decide the matter. There would be no real prejudice to the third respondent in taking that course.

51 With respect to the third respondent's notice of contention dated 31 August, findings of fact made by the learned Judge were sufficient to order the issue of the order nisi, including the findings concerning the actions of the appellants after the granting of the tavern licence and the taking of counsel's advice on 3 May 1999. The third respondent also relies on the delay in prosecuting the application without satisfactory explanation for the time between the last day for entering this application for hearing (7 July 2000) and the date of filing of the applicant's notice of motion for an extension of time to enter the application for hearing (1 December 2000).

52 Justice Ipp decided on 22 December 2000, (Highway Hotel Pty Ltd & Ors v The City of Bunbury & Ors [2000] WASCA 421) that:

"In all the circumstances and particularly having regard to my conclusion that the material responsibility for the delay is that of the appellant's solicitors, I do not think that the delay should preclude the appellants from being able to argue the appeal: Jackamarra v Krakouer (1998) 195 CLR 561 at 543 per Kirby J."

53 I would therefore not uphold grounds 2.1 and 2.2 of the notice of contention.

54 The third ground in the notice of contention was that the proposed use of the subject premises, when the third respondent made the application for a tavern licence and when the licensee was granted, was a permitted use under the first respondent's Town Planning Scheme No 6.

In my view that matter would be more appropriately argued on the return of the order nisi due to the complex questions of law and fact involved.

55 For the above reasons I would allow the appeal and grant an extension of time and an order nisi.

56 TEMPLEMAN J: I have read in draft the reasons published by Wallwork J. I agree with his Honour that the appellants should be granted an extension of time, pursuant to O 3 r 5, in which to make their application for a writ of certiorari.

57 Although the learned primary judge referred to the criteria identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, by which an application for an extension of time may be judged, in the end, her Honour declined to grant an extension because she was not satisfied that the delay had been explained.

58 However, the quality of the explanation cannot be viewed in isolation: it should be weighed in the balance with any other relevant considerations. That, her Honour did not do: with the result that her discretion miscarried and must be exercised afresh by this Court.

59 In grounds 1.4 and 1.6 of their Amended Notice of Appeal, the appellants have set out a number of factors which the learned primary judge found in their favour. Wallwork J has referred to these matters in his reasons and it is not necessary to recite them again. It is sufficient to say that in my view, those factors militate so strongly in favour of an extension as to render less compelling the shortcomings in the explanation for the delay.

60 The explanation was that the appellants did not, until 3 May 1999, receive legal advice about the possible availability of a writ of certiorari to quash the certificate issued pursuant to s 40(1) of the Liquor Licensing Act 1988 (WA). There were then various other proceedings on foot by which the appellants hoped to prevent the third respondents from conducting the tavern. And in the three months before the application was made, there were changes in the ownership and management of the appellants' hotels and in the ownership of hotels where licensees were contributing to the costs of the proceedings.

61 In my view, in all the circumstances as found by the learned primary judge, the delay until 25 October 1999, when the application was made, has been explained satisfactorily. I therefore agree with Wallwork J that it is not necessary to decide whether to admit additional evidence relating to the question of delay.

62 I agree also, for the reasons given by Wallwork J, that grounds 2.1 and 2.2 of the third respondents' Notice of Contention should not be upheld. The other grounds set out in that Notice are relevant only to the substantive application.

63 For these reasons I consider that the appellants should be granted an extension of time and an order nisi.

64 EINFELD AJ: I agree with Justice Wallwork that this appeal should be allowed with costs for the reasons given by his Honour.

Service Act 1922(Cth)

Decision (Judicial Review) Act 1977(Cth)

Decisions (Judicial Review) Act 1977

Licensing Act 1988(WA)

Highway Hotel Pty Ltd & Ors v The City of Bunbury & Ors [2001] WASCA 385

At a glance

Court

Decision date

Before

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Judgment (101 paragraphs)

Highway Hotel Pty Ltd & Ors v The City of Bunbury & Ors [2001] WASCA 385 (7 December 2001)

Parties

Legislation Cited (5)

Cases Cited (14)