Kentlee P/L v Prince Consort P/L [1996] QCA 87

Court of Appeal (Qld)|1996-04-02|Before: Prince Consort P, Before Fitzgerald P, Pincus J, Dowsett J, Fitzgerald P, Mr P

This is an appeal from a decision of a Trial Division Judge dated 14 June 1995.

On 2 November 1994, Prince Consort Pty Ltd, the owner of the Prince Consort Hotel in Fortitude Valley, applied to the Chief Executive of the Department of Tourism, Sport and Racing for his approval, under sub-s. 153(1) of the Liquor Act 1992, to its subletting part of its licensed hotel to the present appellant, Kentlee Pty Ltd, to conduct a licensed cafe within the hotel.

On 2 December 1994, s. 153 of the Liquor Act was repealed and a new s. 153 was inserted, which totally prohibited subletting part of a licensed hotel. At that time, Prince Consort's application had not been determined by the Chief Executive. On 12 December 1994, the Chief Executive informed Prince Consort and Kentlee that the application for his approval to the subletting had been refused. This refusal seems to have been taken as a decision by the Chief Executive that he had no power to grant the approval sought because of the alteration to s. 153 of the Liquor Act.

Prince Consort and Kentlee appealed to the Liquor Appeals Tribunal pursuant to s. 31 of the Liquor Act. By sub-s. 34(1), such an appeal is "by a rehearing of the matter unaffected by the decision appealed against". The Tribunal's wide powers, set out in s. 36, allowed it to confirm the Chief Executive's decision or set it aside in whole or part and substitute its own decision or return the matter to the Chief Executive for him to act in accordance with its directions. On 10 March 1995, the Tribunal dismissed the appeal from the Chief Executive's decision.

A further appeal from the decision of the Tribunal was taken to the Supreme Court under sub-s. 24(1) of the Liquor Act. Such an appeal may be brought only "on a ground of error of law". By sub-s. 24(4), if the Supreme Court finds the Tribunal's decision is affected by error of law, it may set aside the Tribunal's decision and remit the matter to the Tribunal for decision in accordance with law. However, the Trial Division Judge who determined the appeal from the Tribunal dismissed that appeal on 14 June 1995.

Both the Trial Division Judge and the Tribunal gave written reasons for their decisions. I do not think it necessary to analyse those reasons in detail; it is sufficient for present purposes to observe that the change in the law effected by the substitution of the new s. 153 of the Liquor Act for the former s. 153 played a central role in both decisions. The error of law asserted in this Court by Kentlee is that the application for approval should have been considered and decided under the former s. 153 without reference to the new s. 153; and the present appeal seeks that "the matter be remitted to the Liquor Appeals Tribunal for decision according to law".

Despite the form of the order sought, it is to Kentlee's advantage to consider the legal position by reference to the decision of the Chief Executive. The new s. 153 had been inserted in the Liquor Act prior to the appeal to the Tribunal, and there is nothing in the circumstances of this case which would entitle Kentlee to succeed before the Tribunal unless the Chief Executive's refusal to approve the subletting was wrong.

In his reasons for judgment in this Court, Dowsett J. refers to some potential problems with procedures and parties, but no point concerning those matters was taken before us and I propose to put them to one side. On the other hand, the manner in which the proceedings have been conducted and the limited material and information available to this Court have added elements of obscurity and difficulty.

Even in its original form, s. 153 of the Liquor Act forbade a subletting of part of a licensed hotel without the Chief Executive's "prior approval". If every reasonable assumption be made in favour of Prince Consort and Kentlee, while s. 153 of the Liquor Act was in its original form they might, at most, have entered into a subletting or an agreement for subletting which was not to become effective unless and until the Chief Executive's approval had been obtained. I will, for convenience, call any personal, contractual or proprietary "rights" of either Prince Consort or Kentlee associated with such a transaction the "transactional rights". Further consideration of any "transactional rights" can best be left until other aspects of the dispute have been considered.

Kentlee also claimed another "right" for itself and Prince Consort, which I will call for convenience the "statutory right", which might be defined as a right to have the application for the Chief Executive's approval considered and decided. It will be necessary to elaborate further in due course.

Kentlee's case has throughout been based on s. 20 of the Acts Interpretation Act 1954, and it is desirable to set out the material portions of that section before proceeding further:

(2) The repeal or amendment of an Act does not -

(b) affect the previous operation of the Act or anything ... done or begun under the Act; or

(e) affect [a] ... proceeding ... in relation to a right ... mentioned in paragraph (c) ... .

(3) The ... proceeding ... may be ... continued or completed, and the right, ... may be enforced ... as if the repeal or amendment had not happened."

While there are various methods in which these statutory provisions could be approached, either alone or in combination, the preferable course in the present matter seems to me to be to take up and focus upon the "rights" with which sub-s. 20(2)(b), (c), (e) and (3) are concerned and which, according to Kentlee's argument, entitled it to have the application for approval of the subletting considered and decided in accordance with s. 153 of the Liquor Act in its original form, i.e., according to its terms at the time when the application for the Chief Executive's approval was made.

Taken by itself, sub-s. 20(2)(b) of the Acts Interpretation Act seems of little consequence. The statement that the alteration to s. 153 of the Liquor Act did not "affect the previous operation" of that section means no more, in the present context, than that any prior effect of the former s. 153 was not retroactively cancelled by its repeal and the insertion of a new s. 153.

If, as I am prepared to assume, the application to the Chief Executive for approval was "done" under the former s. 153 of the Liquor Act and/or the "proceeding" (Acts Interpretation Act, s. 36) for approval was "begun" under the former s. 153 of the Liquor Act, the substitution of the new s. 153 did not "affect" that application/proceeding for approval, which therefore remained in existence by virtue of sub-s. 20(2)(b) of the Acts Interpretation Act.

However, unless there is some further consequence attributed to the continued existence of the application for approval, nothing of significance follows and it remains as an extant, but sterile application for approval on "proceeding". I will come back to this, particularly by reference to sub-s. 20(3) of the Acts Interpretation Act, which, if it operates in conjunction with sub-s. 20(2)(b) permits that proceedings (applications for approval) "to be continued or completed ... as if the repeal or amendment of the former s. 153 of the Liquor Act has not happened".

For the moment, I propose to pass over further discussion of sub-s. 20(2)(b) of the Acts Interpretation Act, and its possible combination with sub-s. 20(3), and to concentrate upon sub-ss. 20(2)(c), (e) and (3), all of which can appropriately be considered in conjunction. For present purposes, each and all of those provisions can only operate by reference to a "right" which has been "acquired" or which has "accrued" when an enactment, in this instance the former s. 153 of the Liquor Act, was repealed. Shortly stated, the first question for decision is whether, immediately prior to the repeal of the prior s. 153 of the Liquor Act, either or both the transactional rights or the statutory right was an "acquired" or "accrued" right within the meaning of sub-ss. 20(2)(c), (e) and (3) of the Acts Interpretation Act.

It is convenient to commence consideration of the issues thus identified by reference to a recent, and somewhat unusual, decision of the High Court of Australia, Esber v. The Commonwealth [1992] HCA 20; (1992) 174 C.L.R. 430. Although consideration of the Acts Interpretation Act 1901 (Cth) was unnecessary in Esber (pp. 438, 452), since both the majority judgment of Mason C.J., Deane, Toohey and Gaudron JJ. and the dissenting judgment of Brennan J. (as the Chief Justice then was) decided the case by reference to the specific transitional provisions of a particular Commonwealth enactment, the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). Each judgment also discussed at length, and disagreed upon, the operation of sub-ss. 8(c) and (e) of the Acts Interpretation Act 1901 (Cth), which provisions are generally similar, but not precisely identical, to sub-ss. 20(2)(c) and (e) of the Queensland Acts Interpretation Act.

In Esber, a partially incapacitated member of the defence force who was receiving weekly payments of compensation requested, as he was entitled to do under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), that the liability of the Commonwealth to make further periodic payments to him be redeemed by payment of a lump sum pursuant to s. 49 of that Act. Upon receipt of such a request, the Commissioner for Employees' Compensation was required to determine whether the liability of the Commonwealth was to be redeemed and, if so, the amount of the lump sum. Under sub-s. 49(4) the amount of the lump sum was to be calculated in a prescribed manner and, by sub-s.49(5), the liability of the Commonwealth was not to be redeemed unless the Commissioner was satisfied of the following three matters:

"(a) the injury is not likely to result in the employee becoming totally incapacitated for work;

(b) the employee intends to use the lump sum in a manner that is particularly advantageous to the employee; and

(c) in all the circumstances it is desirable in the interests of the employee that the liability of the Commonwealth be redeemed."

After the Commissioner determined that the liability of the Commonwealth was not to be redeemed, the injured worker applied to the Administrative Appeals Tribunal for the Commissioner's decision to be reviewed. After the application for review was filed but before it was heard, the 1971 Act was repealed, but the Tribunal proceeded to hear and determine the matter "in accordance with the law applicable" under the 1971 Act. An appeal by the Commonwealth and its appropriate agency to the Full Federal Court was allowed by a majority; Davies and Hill JJ., Lee J. dissenting, held that the Tribunal should have applied the statute by which the 1971 Act had been repealed, the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). In the circumstances of his particular case, the injured worker would not have been entitled to have his compensation redeemed under the 1988 Act.

The injured worker successfully appealed to the High Court, which, as has been stated, resolved the dispute in his favour on the basis of the transitional provisions in the 1988 Act. However, the majority said at p. 438 that although unnecessary to their decision, an alternative ground based on sub-ss. 8(c) and (e) of the Acts Interpretation Act 1901 (Cth) lent "strong support" to the conclusion which they had already reached that the injured worker was entitled to have the 1971 Act applied.

At p. 439, Mason C.J., Deane, Toohey and Gaudron JJ. noted a need "to identify the `right' which the appellant said was acquired or accrued under the repealed Act", and stated that the appellant put his case on two footings.

"First, he says that he had, in the circumstances, a right to redemption of weekly payments. Alternatively, he says that he had a right to have the Tribunal determine his application to review the [Commissioner's] decision. In either event, the appellant contends, the repeal of the 1971 Act did not affect the right.

Although the appellant put this aspect of his case in two ways, it is fair to say that he relied much more on the second approach. ..."

I have not found the ensuing discussion of the two rights asserted by the injured worker easy to comprehend. In particular, the discussion at p. 439 of the possibility that it might have been open to the Commissioner to reject the worker's request to redeem, at a time when the 1988 Act had not been passed and the 1971 Act indisputably applied, on the basis that there were (or might have been) "other factors he could properly take into account in refusing" the request for redemption cannot be easily reconciled with the subsequent discussion (on p. 440). It was decided that the Tribunal not only remained obliged to apply the 1971 Act after the 1988 Act had been enacted, but it had correctly granted the worker's request because, or so it seems to have been assumed, the matters in paragraphs (a), (b) and (c) of sub-s. 49(5) of the 1971 Act were satisfied and, implicitly, there were no "other factors [the Tribunal] could properly take into account in refusing".

However, it seems unlikely to be productive to spend more time on that point. The majority of the High Court made it clear that the injured worker was entitled to succeed under the Acts Interpretation Act (Cth) because of the second "right" which he claimed, namely, "a right to have his application to the Tribunal", and I interpose to say a fortiori to the Commissioner, "determined pursuant to Pt. V of the 1971 Act" (p. 440).

In dealing with that point, the joint judgment then continued at that page:

"... It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision [Drake v. Minister for Immigration (1979) 24 A.L.R. 577, at p. 589]. In Drake, Bowen C.J. and Deane J. said of the Tribunal [Drake v. Minister for Immigration (1979) 24 A.L.R. 577, at p. 589]:

`The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.'

But that is not the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. ..."

With respect to their Honours, the last sentence in that passage can be read too broadly, and must be confined by its context. Earlier on p. 440, if not necessarily at p. 439, the Court had held that the 1971 Act, not the 1988 Act, was applicable and that the statutory requirements under the 1971 Act had been satisfied before the Tribunal, and there were no "other factors [the Tribunal] could properly take into account in refusing". It was those circumstances, i.e., in which there was no discretionary or other basis for refusal, which were plainly in contemplation in the final sentence in the passage last quoted from Esber, as is made clear by the example which their Honours added:

"... To borrow a sentence from the judgment of Hope J.A. in N.S.W. Aboriginal Land Council v. The Minister [The Winbar Claim] [(1988) 14 N.S.W.L.R. 685, at p. 694]:

`The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.' "

The right spoken of in the N.S.W. Aboriginal Land Council case was a right to a grant which was conditional only in the sense that the material facts had to be established. The relevant discussion in Esber was related to a right derived from statutory pre-conditions which were satisfied.

There is nothing in the passage last quoted from the majority judgment in Esber, including the statement by Hope J.A. in the N.S.W. Aboriginal Land Council case, which indicates that a request, claim or application which is erroneously refused because of a mistaken opinion concerning the statutory provision which is applicable must be granted on review if the correct application of the applicable statutory provision does not require or perhaps even permit that result. Nor is there anything which indicates that, in such circumstances, a request, claim or application which was initially refused because of a legal error must be granted on review if the statutory decision falls to be made by reference to effectively unfettered discretionary considerations.

To the point thus far reached, the majority judgment in Esber had been substantially concerned with a right of the second type asserted by the injured worker; namely, a right to have his request for redemption, made before the change in the law, determined in accordance with the law at the time when the request was made, and, at least in critical passages, had been speaking of such a request which was entitled to succeed on the merits because statutory requirements had been satisfied. Those aspects of the judgment cannot be transferred without qualification to this matter, which is wholly devoid of any indication that the application for approval by Prince Consort and Kentlee was, or is, entitled to succeed on the merits under the former s. 153 of the Liquor Act.

The majority judgment in Esber then concluded, so far as presently material, at pp. 440-441:

"Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely `a power to take advantage of an enactment' [Mathieson v. Burton [1971] HCA 4; (1971) 124 C.L.R. 1, at p. 23, per Gibbs J.; and see Robertson v. City of Nunawading [1973] VicRp 81; [1973] V.R. 819]. Nor was it a mere matter of procedure [See Newell v. The King (1936) 55 C.L.R. 707, at pp. 711-712]; it was a substantive right [See, by way of analogy, Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. [1942] HCA 23; (1942) 66 C.L.R. 161, at pp. 175, 178, 185, 194; Colonial Sugar Refinery Co v. Irving [1905] A.C. 369, at pp. 372-373]. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, `although that right might fairly be called inchoate or contingent' [Free Lanka Insurance Co. Ltd. v. Ranasinghe [1964] A.C. 541, at p. 552; see also Continental Liqueurs Pty. Ltd. v. G.F. Heublein and Bro. Inc. [1960] HCA 37; (1960) 103 C.L.R. 422, at pp. 426-427; Director of Public Works v. Ho Po Sang [1961] UKPC 22; [1961] A.C. 901]. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s. 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.

It is not altogether easy to ascertain whether, and if so in what manner, that passage is applicable to the present case. A number of points must be noted. At least from pp. 440 to 441, the majority in Esber proceeded on the footing that specific statutory requirements which entitled the injured worker to redeem had been satisfied, whereas in the discussion at p. 439, to which some reference has earlier been made, the majority appeared to consider that it would, or at least might, have made a crucial difference if, although paragraphs (a), (b) and (c) of s. 49 of the 1971 Act were satisfied, there was "any residual discretion to refuse redemption or, perhaps more accurately, ... there were other factors [the Commissioner] could properly take into account in refusing". Secondly, in the last passage quoted above from the majority judgment in Esber at p. 440, the majority were concerned with the decision of the Privy Council in The Director of Public Works v. Ho Po Sang [1961] UKPC 22; [1961] A.C. 901 only as authority for the proposition that the rights protected by the material provisions of the Acts Interpretation Act are "anything that may be described as a right, although that right might fairly be called inchoate or contingent". As will be seen, Ho Po Sang, which played a wider and much more important role in the dissenting judgment of Brennan J., has a much greater significance than the majority judgment in Esber perhaps implicitly suggests.

If the passage last quoted from the majority judgment in Esber were applied by analogy to the present case, and a sentence appropriate to the circumstances of this case substituted for the first sentence in the material passage in Esber, there seem to be four possibilities, namely:

(i) "Once Prince Consort and/or Kentlee had lodged an application to the Chief Executive, they had a right to have the decision of the Chief Executive on their application."

(ii) "Once Prince Consort and/or Kentlee had lodged an application to the Chief Executive, they had a right to have the decision of the Chief Executive on their application based on the operation of s. 153 of the Liquor Act at the time when the application was made."

(iii) "Although Prince Consort and/or Kentlee had lodged an application to the Chief Executive, because the operation of s. 153 of the Liquor Act at the time when that application was made gave the Chief Executive a broad, effectively unfettered discretion, they had no right to have a decision based on the operation of s. 153 at that time (especially, it might be added, in the absence of any factors which would support a grant of approval on the merits in those circumstances)."

(iv) "Although Prince Consort and/or Kentlee had lodged an application to the Chief Executive, because the operation of s. 153 of the Liquor Act at the time when that application was made gave the Chief Executive a broad, effectively unfettered discretion, they had no right to have an approval based on the operation of s. 153 at that time (especially, it might again be added, in the absence of any factors which would support a grant of approval on the merits in those circumstances)."

For present purposes, possibility (i) seems to possess no advantage for Kentlee over possibility (ii), and it is to the latter possibilities that, in due course, further reference will be made.

As earlier mentioned, Ho Po Sang played an important part in the dissenting judgment of Brennan J. in Esber. At pp. 446-447, his Honour said:

"... the appellant's right as at 1 December 1988 was no more than a right to have his application determined. So stated, the `right' falls short of an `accrued right' for the purposes of s. 8(c) of the Acts Interpretation Act. The appellant had no right to a redemption payment as at 1 December 1988. A right to a redemption payment did not arise under s. 49 of the 1971 Act until the Commissioner was satisfied that the conditions prescribed by para (a), (b) and (c) of s. 49(5) were fulfilled and the Commissioner determined the amount of the lump sum to be paid. If the Commissioner is not so satisfied, no right to a redemption payment could arise until, on a review, the A.A.T. was satisfied that those conditions were fulfilled and determined the amount of the lump sum to be paid. Whether the A.A.T. would be so satisfied was contingent, inter alia, on its formation of two value judgments: that the appellant's intended manner of using a lump sum redemption payment would be `particularly advantageous' to him (par. (b)) and that redemption would be `desirable' in his interests (par. (c)). Assuming that the appellant had duly taken all the steps required of him in order to obtain a review of the determination by the delegate of the Commissioner, the investigation or proceeding before the A.A.T. was not an investigation or proceeding in respect of an acquired or accrued right. ..."

Pausing there, it is patent that his Honour was rejecting on the facts the first of the two rights claimed by the injured worker which the majority had identified at p. 439, namely, a right to redemption of his weekly payments. More importantly, for present purposes, Brennan J. also rejected the second right claimed by the injured worker, i.e., to have his request for redemption accepted as a "right" for the purposes of the Acts Interpretation Act, which carried with it the right to have his request determined in accordance with the law at the time when the request was made. At pp. 447-448, his Honour continued:

"... The observations of the Privy Council in Director of Public Works v. Ho Po Sang [[1961] A.C. 901] apply to the present case. In that case, petitions and a cross-petition had been duly lodged with the Governor of Hong Kong following a notification of intention to issue a lessee with a rebuilding certificate which, under the existing Ordinance, would have entitled him to eject sub-lessees without compensation. While the petitions and cross-petition remained undetermined, the Ordinance was repealed. The Privy Council rejected an argument by the lessee that, under s. 10 of the Interpretation Ordinance (substantially in the same terms as s. 8 of the Acts Interpretation Act), the lessee had `a right or a privilege, either acquired or accrued' to a consideration by the Governor of the petitions and cross-petition, saying [ibid, at pp. 921-922; and see Robertson v. City of Nunawading [1973] VicRp 81; [1973] V.R. 819, at p. 825]:

`On April 9 [the day of the repeal] the lessee was quite unable to know whether or not he would be given a rebuilding certificate, and until the petitions and cross-petition were taken into consideration by the Governor in Council no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects.' "

Pausing there, the passage to which underlining has been added seems to have involved a rejection by the Privy Council of a right equivalent to the second right claimed by the injured worker in Esber, namely, a right to have his request for redemption considered in accordance with the law at the time when it was made. Their Lordships were not expressly dealing with a right equivalent to the first right claimed by the injured worker in Esber; namely, in the context of Ho Po Sang, a right to the grant of the petitions or cross-petition. They were however concerned to deny even a right to consideration of those proceedings in accordance with the Ordinance which had since been repealed, at least in the circumstances which there existed. Of present concern in this matter are the circumstances in which the decision-maker to whom the application was made had, under the law then in force, an effectively unfettered discretion.

Brennan J. then went on at pp. 447-448, speaking this time of the second right claimed by the injured worker in Esber; in the words underlined in the following passage, his Honour described that right as "... the appellant's `right' to have the A.A.T. [or it might be added the Commissioner] determine his application to a redemption payment". The entire passage in the judgment of Brennan J. in Esber, which reverts back to the extract last quoted from Ho Po Sang, is as follows:

"Mutatis mutandis, the same may be said of the appellant's `right' to have the A.A.T. determine his application for a redemption payment. Their Lordships proceeded [ibid, at p. 922]:

`It is to be observed that under s. 10(e) a repeal is not to affect any investigation, legal proceeding or remedy "in respect of any such right". The right referred to is the right mention in s. 10(c), i.e., a right acquired or accrued under a repealed enactment. This part of the provisions in par. (e) of s. 10 does not and cannot operate unless there is a right as contemplated in par. (c). It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not. Their Lordships agree with the observation of Blair-Kerr J. that: "It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion." `

No doubt the appellant entertained some expectation that he would satisfy the A.A.T. that the conditions prescribed by s. 49(5) of the 1971 Act would be fulfilled but until he persuaded the A.A.T. to form the value judgments requires by pars (b) and (c) and otherwise to be satisfied that the relevant conditions had been fulfilled, the appellant had no more than `a hope or expectation' that he would become entitled to a redemption payment. There was no transaction `past and closed'; no transaction `already completed under [the repealed Act]. ..."

As I read his Honour's judgment, 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 proceeding 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. His Honour continued at pp. 448-449:

"The appellant's application to the A.A.T. invoked an administrative jurisdiction to review his application under s. 49(1) for a redemption payment. Exercising an administrative jurisdiction, the A.A.T. determines applications for review on a rehearing de novo, acting on the materials before it when it makes its determination [Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. [1976] HCA 62; (1976) 135 C.L.R. 616, at pp. 620-621; Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 A.L.R. 577, at pp. 589, 599; Re Costello [1979] AATA 184; (1979) 2 A.L.D. 934, at pp. 940, 943]. Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time [Harris v. Caladine [1991] HCA 9; (1991) 172 C.L.R. 84, at p. 125; Re Costello (1979) 2 A.L.D., at p. 944]. By contrast, in a judicial proceeding brought to enforce an alleged right accrued at the time when the proceedings were instituted, the question for decision is determined according to the law existing when the proceedings were instituted unless statute otherwise provides. ...

The distinction between a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a right should be granted is critical in this case. Clearly the appellant had no accrued right on 1 December 1988 to a redemption payment; the very purpose of the review by the A.A.T. which the appellant applied for was to obtain a right to a redemption payment. As the A.A.T. was bound to apply the law as it was at the time of the rehearing, it was bound to refuse the application."

Although I do not think it of significance in the present dispute, I admit to having some difficulty with the last paragraph quoted, in which Brennan J. describes as "critical" in that case, the "distinction between a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a right is granted". His Honour saw it as central to such an "administrative proceeding" that the decision-maker "was bound to apply the law as it was at the time of the [hearing]". However, while that is no doubt usually correct, the statements made seem to have begged the question for decision in the context in which it was made, which was whether, notwithstanding the ordinary rule, the administrative decision-maker was required by the operation of the Acts Interpretation Act to apply the law in force at the time when the application for the administrative decision was commenced.

Despite the prominent role which it played in the argument, I have not been able to discover the solution to this dispute in Esber. Brennan J.'s dissenting judgment seems clearly enough against Kentlee, while the majority judgment does not permit a confident view of their Honour's opinion in a case such as this, in which the approval applied for prior to the change in the law which prohibited such an approval was dependent, under the old law, on a broad, largely unfettered discretion. On balance, the passage at p. 439 suggests that the majority at least doubted whether a statutory application for an administrative decision prior to a material alteration in the law continued to entitle the applicant to a decision (or a fortiori to a favourable decision) if the previous law sought to be given a continued operation gave the decision-maker a wide, effectively unfettered discretion.

A number of earlier authorities were referred to in the majority judgment in Esber at p. 440. Many of them had earlier been referred to in generally similar terms by Gibbs J. (as his Honour then was) in Mathieson v. Burton (1971) 124 C.L.R. at pp. 23-24. Additional cases were referred to in the decision of the Tribunal and the Trial Division Judge and/or asserted by the parties, but on more than one occasion it is recognised that this branch of the law requires fine distinctions and there is little to be gained by a compendious discussion of the cases.

Abbot v. The Minister for Lands [1895] A.C. 425 provides an example at one extreme; a "right" to make an application under an enactment which is repealed before the application is made, is not preserved by the Acts Interpretation Acts.

N.S.W. Aboriginal Land Council is at or towards the other end. Under the Aboriginal Lands Act 1983 as it stood in 1984, the Land Council was entitled to a transfer of certain claimable land in fee simple. The procedure required a claim to the Minister with a right of appeal to the Land and Environment Court. Initially, the Minister refused the claim and the Land Council appealed. Before the appeal came on for hearing, the Minister granted the claim. However, by then the Act had been amended to provide that land in the particular category should be granted by a lease in perpetuity. In further litigation, it was held that the Land Council was entitled to an estate in fee simple because it had a statutory right to such an estate subject only to a non-discretionary decision under the Act in force when the application for the land was made.

Hope J.A., with whom Samuels and Clarke JJ.A. agreed, said at pp. 691-693:

"The first matter to be noticed is that the definition of `claimable Crown lands' in s 36(1) fixes the time as at which the conditions which it specifies must be satisfied as the time when the claim for the lands is made. It does not require the conditions to be satisfied at some later time, as, for example, when the Minister investigates the matter or when the court, on appeal, investigates it. What the Minister was then required to do under s 36(5) was to investigate whether the land the subject of the claim satisfied the conditions of the definition at the time the claim was made, and if so satisfied he was required, under the Act in its original form, to transfer the land to the claimant Land Council in fee simple. He had no discretion in the matter; he was simply required to look at a state of facts existing at the date of the claim.

The nature of his inquiry was not affected by the circumstance that the resolution of the question might be difficult or might involve questions of judgment ... If the conditions were in truth satisfied at the time the claim was made the investigation of them by the Minister and his satisfaction in respect of them would be no different in substance from an investigation by a court as to whether facts existed at some prior date giving rise to a right in a party making a claim to that right before it. The Minister might make a wrong decision, but no question of discretion would be involved.

However that is only the first step provided by the section. If the Minister refuses to grant the claim, there is an appeal to the Land and Environment Court which `shall hear and determine' the appeal and `may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands ... be transferred to the claimant ...'. The function of the court again is simply to determine whether the conditions in the definition of `claimable Crown lands' are satisfied, again as at the date the claim was made, the onus being on the Minister to prove that they were not so satisfied. ...

In my opinion these and other like authorities make it plain that the power which s 36(7) confers upon the Land and Environment Court is not a discretionary power but a power which it is bound to exercise in favour of the claimant in the circumstances specified in the subsection.

What then is the nature of the right which the Land Council had after it had made its claim, when its claim was being investigated by the Minister, and when it lodged its appeal to the Land and Environment Court. It is easier first to say what it was not. It was not a mere right existing in the members of the relevant class of the community `to take advantage of an enactment, without any act done by an individual towards availing himself of that right': Abbott v. Minister for Lands [1895] AC 425 at 431, nor was it a right to set in train an application for a grant which the Minister or on appeal, the court might, as a matter of discretion, grant or refuse. The position of an applicant for the exercise of a discretionary power was considered by the Privy Council in Director of Public Works v. Ho Po Sang [1961] UKPC 22; [1961] AC 901. ..."

After discussing Ho Po Sang, Hope J.A. went on at pp. 694-696:

"The rights conferred by the Aboriginal Land Rights Act do not fall into this category. On the other hand the Act does not in terms expressly confer a right in the land on the applicant at the time the claim is made. It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional. In this regard the legislation is quite different from that considered by the High Court in R v. Kearney; Ex parte Northern Land Council (1984) 158 CLR 365 where under the relevant Land Rights Act, as Gibbs CJ pointed out (at 373), an application, to be successful, `must attract the favourable exercise of three independent discretions - those of the Commissioner, the Minister and the Governor-General ...'.

I can find no decision exactly in point but perhaps there are cases which throw some light upon the matter. One is Hamilton Gell v. White [1922] 2 KB 422, which was cited with approval by the Privy Council in Director of Public Works v. Ho Po Sang (at 925-926). In that case a tenant of an agricultural holding duly gave notice of his intention to claim compensation for disturbance after having been given a notice to quit by his landlord. The statutory provision which gave him a right to compensation was repealed before he gave notice claiming compensation which was a condition of his entitlement. He nonetheless gave it and was held entitled to have the arbitrator to whom the matter had gone make the appropriate award in his favour. Scrutton LJ (at 430) said:

`... As soon as the tenant had given notice of his intention to claim compensation under s 11 he was entitled to have that claim investigated by an arbitrator. In the course of that arbitration he would no doubt have to prove that that right in fact existed, that is to say that the notice to quit was given in view of a sale, and he would also have to prove the measure of his loss. But he was entitled to have that investigation, which had been begun, continue, for s 38 expressly provides that the investigation shall not be affected by the repeal.'

Section 38 is the equivalent of the Interpretation Act 1897, s 8.

A decision concerning what might be regarded as a contingent right and which has been approved on a number of occasions is Heston and Isleworth Urban District Council v. Grout [1897] 2 Ch 306. There the council gave a notice under a Public Health Act 1875 (UK) to sewer and make up a private street. Under the Act, if the frontagers did not do the work within a limited time, the council had a right to do the work itself and to charge the frontagers with the expense. The frontagers having made default, the council took steps toward doing the work, but before the work had been commenced, the council formally adopted the provisions of another statute as a result of which the relevant section of the Public Health Act (UK) ceased to apply to the council's district. The council subsequently carried out the work and sued for the cost. It was held entitled to succeed. This decision was cited with approval by the High Court in Carr v. Finance Corporation of Australia Ltd [No. 2] [1982] HCA 43; (1982) 150 CLR 139 at 151-152 and by the Privy Council in Director of Public Works v. Ho Po Sang (at 922, 924). Lord Morris said (at 924) of it:

`In that case the position on 1 August 1894, was that the frontagers, being in default, were under a liability and the local authority had a right. The liability of the frontagers was nonetheless a liability even though no claim in money could be presented against them unless and until the local authority executed the works. So, also, the local authority possessed rights on 1 August 1894. They possessed rights against the frontagers, even though they could present no money claims unless and until they executed the necessary works.'

Perhaps the principle established in these decisions is to be found in the judgment of the Privy Council in Free Lanka Insurance Co Ltd v. Ranasinghe [1964] AC 541. There s 133 of the Motor Car Ordinance 1938 of Ceylon (as it was then called) provided that if after a certificate of insurance was issued under the ordinance to the policy holder, a decree in respect of any such liability as was required to be covered by a policy of insurance was obtained against any person insured by the policy, the insurer should pay to persons entitled to the benefit of the decree any sum payable thereunder in respect of that liability. A person injured by the negligence of an insured lorry driver was entitled to obtain the relevant decree, and had duly served notice of his claim, but had not obtained the decree when the ordinance was repealed. It was held that he was nonetheless entitled to recover from the insurer, his right being preserved by a provision similar to the Interpretation Act 1897, s 8. Lord Evershed, giving the judgment of the Privy Council, pointed out (at 552) that the distinction between what is and what is not `a right' must often be one of great fineness and concluded that the injured person had more than a mere hope of expectation; he had in truth a right in the contemplation of the Interpretation Ordinance 1900 (Ceylon), although that right might fairly be called inchoate or contingent. In arriving at this conclusion, his Lordship referred to the judgment in Director of Public Works v. Ho Po Sang.

These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment." [underlining added]

Neither Esber nor the New South Wales Aboriginal Land Council case casts the slightest doubt on Ho Po Sang, or the cases which have followed it such as the Victorian Full Court decisions of Robertson v. City of Nunawading [1973] VicRp 81; [1973] V.R. 819 and Ungar v. City of Malvern [1979] VicRp 25; [1979] V.R. 259. Neither a right to make an application under a statute nor an application made under a statute for a wholly discretionary benefit gives a right to have the application continued and completed under the statute in its original form, notwithstanding its amendment or repeal.

In Robertson, a landowner applied for a local authority's permission to subdivide land for industrial or commercial purposes under s. 569A of the Local Government Act 1958 (Vic), which the local authority was required to deal with under s. 569B. Prior to the local authority making a decision on the application, a new provision was inserted to s. 569B entitling the local authority to request security from the landowner and, if the security was not provided, a discretion to refuse to seal the plan of subdivision. It was held that the landowner did not have the right to have his subdivisional application continued, considered and decided unaffected by the amendment to the statute.

In dealing first with the common law position, the Court (Winneke C.J., Gowans and Starke JJ.) said at p. 825-826:

"It is true that the provision subjected the subdivider to a new risk with respect to the sealing of his plan. But it cannot be said that he had a right to be exempt or immune from that. It is said that there was a right which accrued to the owners when they submitted the plan to the council to have it dealt with (by sealing it or refusing to seal it) free from the effect of any changes in the law pending its being so disposed of. ... But, in any event, did the present owners have any right of the kind suggested?

The mere locus standi of a member of the community to take advantage of an enactment is not a right within the principle being discussed, for otherwise there could be no effective repeal or amendment of any such enactment: cf. Abbot v. Minister of Lands, [1985] A.C. 425, at p. 431). There must be a specific right. Resort to the enactment by the making of an application under it which looks to an expectancy of benefit from the application is not itself productive of such a right. The applicant, by reason of the mere launching of the application, acquires no vested right to have the application determined irrespective of the repeal of the enactment. The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure continued in the face of the repeal of the enactment under which it was instituted. This must be taken to be the effect of the judgment of the Privy Council in Director of Public Works v. Ho Po Sang, [1961] UKPC 22; [1961] A.C. 901; [1961] 2 All E.R. 721 (and in particular at A.C. pp. 922 and 924-5): `The validity of "anything duly done" before 9 April 1957 was not affected by the repeal. Accordingly the procedural steps which had been taken as a preliminary to obtaining a decision of the Governor were not invalidated: they were, however, rendered abortive for the repeal ended the hope of possibility of being given a re-building certificate. The lessee enjoyed no right which was kept alive. He did not have any right even of a contingent nature ... . In the present case the lessee had taken procedural steps in the hope of being able to obtain a re-building certificate, but at the date of repeal he had no accrued right.' These observations were made in relation to the operation of the Interpretation Ordinance of Hong Kong, but they would appear to be equally applicable to the application of the common law principle.

If the conclusion is justified (as it appears to be) that the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings after the repeal of the statute, then the conclusion seems equally justified that the mere taking of such procedural steps does not create a right to the continuance of the proceedings unaffected by amendment of the statute."

Then, they turned at p. 827 to the provisions of the Acts Interpretation Act 1958 (Vic) which correspond generally with sub-ss. 20(2)(c) and (e) of the Queensland Acts Interpretation Act and said:

"There may be some areas in which the limits of the common law principle and those of this statutory provision are not the same. The case where an amending statute imposes an entirely new obligation may be one covered by the common law principle and not by the statutory provision. But, for present purposes, the quality of the `right' required for the purpose of the statutory provision can be tested in the same way as a right for the purpose of applying the common law principle, as is shown by the judgment in the Ho Po Sang Case, supra. The same conclusion must be adopted that no right or obligation of the relevant kind would be affected, if the new sub-section (8A) were treated as applicable in respect of a plan submitted before the change."

In Ungar v. City of Malvern, a landowner applied for permission to use part of his land as a commercial vehicle park. At that time, such a permit could have been granted in the local authority's discretion, but was refused. By the time an appeal to the Town Planning Appeals Tribunal came on, the law had been changed and it was no longer permissible to grant such a permit. It was held that the landowner did not have a right to have his application decided under the law as it existed at the time when the application was first made.

The Court, Young C.J., Menhennit and Crockett JJ., once again based itself principally on Ho Po Sang, saying at p. 264-266:

"... The issue for consideration is whether or not, by instituting his appeal before the amendment to the Planning Scheme, the appellant acquire a right or a privilege to have his application determined in accordance with the law as it existed at the date on which he instituted his appeal.

The principles enunciated by the Privy Council in Director of Public Works v. Ho Po Sang, [1961] UKPC 22; [1961] A.C. 901; [1961] 2 All E.R. 721, are, we think, determinative of this case. The issue there dealt with as to the position of parties to an appeal from one authority with discretionary power to grant permission to another body with a like discretionary power, where the power to grant the permission is repealed during the pendency of the appeal, is in principle indistinguishable from the position in the present case. In the case before it the Privy Council dealt with s. 10 of the Interpretation Ordinance of Hong Kong, the relevant provisions of which were: `The repeal of any enactment shall not ... (c) affect any right privilege ... acquired accrued or incurred under any enactment so repealed ...(e) affect any investigation ... in respect of any such right.'

A Crown lessee of premises applied under a Landlord and Tenant Ordinance to the Director of Public Works for a rebuilding certificate. If such certificate were granted the Crown lessee was entitled to call upon his tenants to quit. The Director notified the Crown lessee of his intention to grant a certificate and notice of this intention was served on the tenants who appealed by way of petition to the Governor-in-Council and the Crown lessee cross-appealed. Before the appeal come on for hearing the provision for the grant of a rebuilding certificate was repealed. The Director thereupon purported to grant the rebuilding certificate to the Crown lessee. The Privy Council upheld the judgment of the Supreme Court of Hong Kong (Appellate Jurisdiction) that the certificate so granted was invalid.

It was held that, the appeals having been instituted, the notice of intention by the Director did not give the Crown lessee a right to a certificate. As to the effect of the institution of the appeals, the Privy Council held that the entitlement of the Crown lessee before the repeal of the provision for the grant of a rebuilding certificate was not a right or privilege either accrued or acquired within the meaning of the Interpretation Ordinance.

Lord Morris of Borth-y-Gest, delivering the judgment of the Privy Council, said [1961] A.C. at pp. 921-2; [1961] 2 All E.R. at p. 731: `Was the lessee therefore possessed on April 9 of a "right" (or privilege) within the meaning of the Interpretation Ordinance? In their Lordships' view the entitlement of the lessee in the period prior to April 9 to have the petitions and cross-petition considered was not such a "right". On April 9 the lessee was quite unable to know whether or not he would be given a rebuilding certificate, and until the petitions and cross-petition were taken into consideration by the Governor in Council no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects.

`It is to be observed that under s. 10_(e)_ a repeal is not to affect any investigation, legal proceeding or remedy "in respect of any such right". The right referred to is the right mentioned in s. 10_(c)_, i.e., a right acquired or accrued under a repealed enactment. This part of the provisions in para. (e) of s. 10 does not and cannot operate unless there is a right as contemplated in para. (c). It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not. Their Lordships agree with the observation of Blair-Kerr J. that: "It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion." `

In the present case the institution of the appeal by the appellant gave him no more than a hope or expectation that his appeal would succeed and that he would be granted a permit. But, as the Appeals Tribunal had a discretion as to whether or not it would grant a permit, the question was open and unresolved. No right or privilege had been acquired by the appellant nor had any right or privilege accrued to him. The investigation by the Appeals Tribunal was not in respect of some right of the appellant but was to decide whether some right should or should not be given. Hence, as the appellant had no right or privilege when the law was changed to make it illegal to grant a permit for a commercial vehicle park ... , the Appeals Tribunal was bound to refuse to give such a permit to the appellant.

This conclusion accords also with the decision of the Full Court in Robertson v. City of Nunawading, [1973] VicRp 81; [1973] V.R. 819. In that case a subdivider of land applied to a municipal council for it to seal a plan of subdivision submitted by him. After the application to the council was lodged with the council, but before it had been dealt with by the council, the law was amended by provisions which empowered a council to require a subdivider to pay certain security to the council before a plan of subdivision was sealed. The Full Court, applying the decision of the Privy Council in Director of Public Works v. Ho Po Sang, supra, held that the lodging of the plan with the council gave the subdivider no right to a continuance of the proceedings unaffected by the amendment to the statute and that the council was entitled to require the payment of the security by the subdivider."

I can discern nothing in Esber or the other cases since Ho Po Sang which suggests that its authority is in any respect qualified or impaired. Ho Po Sang and the cases which follow it, in my opinion, definitively reject the statutory "right" which Kentlee relies on in this case as an "accrued" or "acquired" right which, by the operation of sub-ss. 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 (sub-ss. 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 discretions. But the position is otherwise where, as in the present matter, the discretion is effectively at large.

The theoretical possibility remains that the reintroduction of sub-ss. 20(2)(b) and (3) at this point might assist Kentlee. Earlier, I mentioned that if the application for the Chief Executive's approval was a proceeding begun under the former s. 153 of the Liquor Act, sub-s. 20(3) of the Acts Interpretation Act provides for the "proceeding ... [to] be continued or completed, and the right [to] be enforced" as if the former s. 153 of the Liquor Act had not been altered. However, the "proceeding" referred to in sub-s. 20(3) is a "proceeding" to which sub-s. 20(2)(e) applies, i.e., a "proceeding ... in relation to a right mentioned in paragraph (c)"; that is to say, in relation to a "right ... acquired [or] accrued ... under the [former s. 153 of the Liquor] Act". As already explained, the authorities reject the existence of such an acquired or accrued right in the present circumstances, in which the application or proceeding is for the favourable exercise of a broad, largely unfettered discretion, and, in the absence of such a right, there can be no proceeding in relation to such a right for continuation or completion under the former sub-s. 120(3) of the Liquor Act. It is unnecessary for me to consider whether, in these circumstances, the correctness of McLean v. James Cook University of North Queensland [1994] 1 Qd.R. 399 should be accepted.

Earlier, I referred to what I described as Prince Consort and Kentlee's "transactional rights", but I cannot see how any such rights could create or improve a right to have the application for approval considered and decided in accordance with the former s. 153 of the Liquor Act. Sub-sections 20(2)(c), (e) and (3) are concerned with rights "acquired" or "accrued" under a subsequently repealed enactment, not with rights acquired under private transactions. Further, if it matters, it seems to me impossible, if not absurd, to try to accord greater significance for present purposes to the transactional rights over the statutory "right" which has not acquired or been accrued upon which the transactional rights depend. Assuming that the Chief Executive's approval was not a condition precedent to the existence of any subletting or agreement for subletting, it was at least a condition precedent to any right arising or deriving from such a transaction: see, for example, Perri v. Coolangatta Investments Pty Ltd (1982) 149 C.L.R. 537; Bahr v. Nicolay (No. 2) [1988] HCA 16; (1988) 164 C.L.R. 604. The dependent transactional right could obviously not survive the loss of any supportive statutory right on which it was founded, i.e., the Chief Executive's approval, or for that matter the lapse of the application (or "proceeding" - Acts Interpretation Act, s. 36) on which the statutory right was necessarily founded. Indeed, the non-existence or fulfilment of the statutory right would render the performance, if not the existence, of the transactions illegal.

Finally, I am not persuaded that, even if all else had been decided in its favour, Kentlee should have succeeded in this appeal. There was nothing drawn to our attention to suggest that Kentlee might have had a case for approval on the merits which made it inappropriate for the Chief Executive to apply what had become by the time of his decision a clear legislative policy to refuse the subletting of part of a licensed hotel: cf. Green v. Daniels (1977) 51 A.L.J.R. 463.

The substantial issue is, as explained in the reasons of Dowsett J, the effect of the amendment to the Liquor Act 1992 ("the Act") which was made on 2 December 1994. Before that date the licensee of a hotel had applied to the chief executive of the relevant department for approval of an agreement under which the appellant Kentlee Pty Ltd was to conduct a cafe within the licensed premises, the Prince Consort Hotel in Fortitude Valley. Prior to the amendment the chief executive had power to approve the proposed agreement.

But the amendment, if applicable to the present circumstances, took that power away. Under the amendment the chief executive may grant approval only if the agreement relates to all of the licensed premises, and here it relates to part only of them.

Under para. (c) of s. 20(1) of the Acts Interpretation Act 1954 ("s. 20(1)") the amendment prima facie does not "affect a right, privilege or liability acquired, accrued or incurred under the" Act as it stood before the amendment. The question is whether the right to apply for the chief executive's approval of such an arrangement as I have mentioned is a "right" within s. 20(1)(c); in the result, I have found it unnecessary to consider any other part of s. 20(1). In Esber v. The Commonwealth of Australia [1992] HCA 20; (1992) 174 C.L.R. 430, the High Court held that the appellant's right to have a certain administrative decision reconsidered and determined by the Commonwealth Administrative Appeals Tribunal was a right within the meaning of the provision in the Commonwealth Acts Interpretation Act corresponding to para. (c) of s. 20(1). The result was that the right was protected by that provision and was not affected by the repeal, after the application to the Tribunal was made, of the statute which empowered the making of the administrative decision sought by the appellant; that decision would have been one permitting the redemption, by a lump sum, of payments of workers' compensation.

The difference between the present case and Esber is that here, when the amendment was made, there was no application before an administrative tribunal as there was, at the relevant time, in Esber. Matters were in the present case at an earlier stage: the application was before an official, the chief executive.

It is not easy to see why, for this purpose, a distinction should be drawn between - (a) the right to have an attack on an administrative decision dealt with by a tribunal, which was the right in issue in Esber, and (b) the right to have an application to an administrator properly dealt with by the administrator, which is the right in issue here. In each case the application is one to an administrative, not a judicial, entity.

Yet that distinction may underlie the decision of the majority in Esber. Their Honours (p. 440, fn. 18) explained that the right to have the matter dealt with by the Tribunal "was not merely `a power to take advantage of an enactment'" and referred not only to Mathieson v. Burton [1971] HCA 4; (1971) 124 C.L.R. 1 at 23, but also to Robertson v. City of Nunawading [1973] VicRp 81; [1973] V.R. 819. In the former case, at the place indicated, Gibbs J (as he then was) said, referring to the provision of New South Wales law then corresponding to para. (c) of our s. 20(1):

"That section in referring to a right acquired or accrued does not preserve a power to take advantage of an enactment, assuming that that may properly be described as a right (Abbott v. The Minister for Lands [1895] A.C. 425 at 431), and does not apply where there is merely a hope or expectation that a right will be created (Director of Public Works v. Ho Po Sang [1961] UKPC 22; [1961] A.C. 901)".

In Ho Po Sang, to put it succinctly, one of the questions was whether a right to pursue an application for a rebuilding certificate, which it was within the power of a certain official to grant, was an accrued right within the meaning of a corresponding provision of the law of Hong Kong; it was held that it was not. Perhaps more importantly, in Robertson v. City of Nunawading it was held, in the context of a case in which at the date of the relevant amendment an application to subdivide land had been lodged with a council, that:

"The applicant, by reason of the mere launching of the application, acquires no vested right to have the application determined irrespective of the repeal of the enactment. The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure continued in the face of the repeal of the enactment under which it was instituted" (825, 826).

A question arising here is whether Esber intended to lay down the rule that there is a right, for present purposes, to pursue an application for a favourable decision from an administrator once the application is made to the administrator, or only to decide that there is such a right where, the application to the administrator having been refused, the matter has been pursued further, by way of recourse to an administrative tribunal. On the former view this appeal must be allowed, because when the law was changed there was a pending application before the chief executive. But on the latter view, para. (c) of s. 20(1) could assist the appellant only if at the relevant time the chief executive had refused the application before him and an appeal to the Liquor Appeals Tribunal had been lodged, but not dealt with.

I have had difficulty in understanding why the position of the person awaiting an administrative decision at first instance (as here) should for the purposes of para. (c) be weaker than that of a person awaiting the decision of an administrative tribunal (as in Esber). Although the tendency of the majority reasons in Esber is to support the validity of that distinction, they do not do so conclusively. An indication as to the principle which underlay the Court's decision is to be found in the reference to Newell (1936) 55 C.L.R. 707 at 711-712, in support of the view that Esber's right to get a decision from the tribunal was not "a mere matter of procedure". Newell, which concerned the applicability of an amendment to the system of jury trial, to provide for a majority verdict, implicitly refers at the pages mentioned to the principle that an amendment to the law, other than one of a procedural kind, does not affect pending proceedings in court. This has been discussed in South Australian Land Mortgage and Agency Co. Ltd v. The King [1922] HCA 17; (1922) 30 C.L.R. 523 at 563, Continental Liquors Pty Ltd v. G F Heublein [1960] HCA 37; (1960) 103 C.L.R. 422 at 426, 427 and, at some length, in the dissenting judgment in Esber. (See also Bawn Pty Ltd v. Metropolitan Meat Industry Board (1970) 72 S.R.(N.S.W.) 466 at 473, 474, 481, 482, 486 et seq and In Re Yarrell (1956) N.Z.L.R. 739). The dissenting judgment in Esber, that of Brennan J (as his Honour then was), is based in part on a refusal to assimilate administrative process to judicial process for this purpose: see Esber [1992] HCA 20; (1992) 174 C.L.R. 430 at 449.

Whilst I understand the force of the view that Esber stands for the proposition that there is an accrued right where the applicant is awaiting a decision of an administrative body by way of challenge to an earlier refusal, but not where the applicant is awaiting the initial decision, it is not clear to me that the case decides this. I prefer to proceed on the footing that whether the position of the latter is weaker than that of the former applicant remains undecided. The question then remains: what intention should be imputed to the legislature, as to the position of applicants whose application is undecided at the date of the amendment discussed above? The proper course is, in my respectful opinion, not to adopt the view that the legislature intended to make that amendment applicable to circumstances such as those of the licensee in the present case. The right of a property owner or that of a person with a lesser interest in property to make an agreement under which another becomes entitled to occupy part of a property is one accorded by the general law. Coco [1994] HCA 15; (1994) 179 C.L.R. 427 is authority for the view that ". . . an intention to interfere with fundamental rights . . . must be clearly manifested by unmistakable and unambiguous language" (437). One of the fundamental rights which the Court there identified was the "right of a person to exclude others from his or her property" (438). Of course a trespass may be damaging and reprehensible, or trivial, as when a traveller takes a shortcut on foot across a corner of a 1000 hectare property: but the doctrine of Coco does not, as I understand the case, depend on the seriousness of the particular infringement. See also Wade v. N.S.W. Rutile Mining Co. [1969] HCA 28; (1969) 121 C.L.R. 177 at 181 and American Dairy Queen (Qld) Pty Ltd [1981] HCA 65; (1981) 147 C.L.R. 677. Here, the right in question is a right to deal with one's own property, and it appears to me to have no less a claim to be fundamental than a right to exclude others from one's property.

The task on which the Court is engaged is one of construction of the amending Act against the background of s. 20(1). The intention to be attributed to the legislature, considered in the uncertain light of the decision in Esber, is a matter capable of argument on either side. It appears to me consistent with the principle to which the High Court alluded in Coco to read narrowly the absolute prohibition on certain dealings with part of a person's property, effected by the 1994 amendment to the Liquor Act, if such a reading is reasonably open; that construction which interferes less with the property owner's rights should be preferred.

That is, it is unclear whether the 1994 amendment was intended to catch instances in which a dealing or proposed dealing had been the subject of an application for approval, prior to the date on which the amendment came into effect. In my opinion the orthodox course, in those circumstances, is to treat the amendment as applicable only to instances in which there was no pending application for approval by the chief executive when the new law, prohibiting certain property dealings absolutely, came into effect.

I would therefore treat the pre-amendment law as governing the application for approval made on 2 November 1994 in respect of the proposed agreement relating to a cafe at the Prince Consort Hotel.

The result is that the appeal should, in my view, be allowed.

Section 153(1) of the Liquor Act 1992, as it stood prior to 2 December, 1994 provided:-

(a) let or sub-let any part of the licensed premises; or

(b) enter into a franchise or management agreement in respect of any part of the licensed premises;

The Liquor Amendment Act (No.2) 1994 deleted s.153 in that form and inserted a new section, the relevant parts of which are as follows:-

"(1) A licensee must not, without the chief executive's approval -

(a) let or sub-let all of the licensed premises; or

(b) enter into a franchise or management agreement for all of the licensed premises.

(a) let or sub-let part of the licensed premises; or

(b) enter into a franchise or management agreement for part of the licensed premises."

The amendment came into effect on 2 December, 1994.

On 2 November, 1994 the first respondent, the licensee of the Prince Consort Hotel in Fortitude Valley, applied to the second respondent for approval of an agreement, either already concluded or to be concluded, with the appellant pursuant to which the latter was to carry on the business of a licensed cafe within the hotel.On 12 December, 1994 the solicitors for the appellant and the first respondent were told that the application had been refused because of the amendment to the Act. The appellant and the first respondent then appealed to the Liquor Appeals Tribunal which dismissed the appeal, confirming the second respondent's decision. The appellant then appealed to a single Judge of the Supreme Court, joining Prince Consort Pty Ltd as a respondent, which appeal was also unsuccessful. The appellant now appeals to this Court. It appears to have been common ground at all stages that the agreement or proposed agreement between the appellant and the first respondent would, prior to 2 December, 1994, have required the approval of the chief executive pursuant to s.153 and is now prohibited by that section.

There are a number of curiosities about these proceedings. Firstly, we know little about the proposed arrangements between the appellant and the first respondent. Secondly, I would have expected the first respondent to have been the appellant. The licensee was the appropriate applicant for approval and therefore the appropriate appellant. I cannot see how the present appellant became a party before the Liquor Appeals Tribunal, or at first instance in this Court. However, nobody challenged the competence of the appeal. Thirdly, it is not clear to me that the Liquor Appeals Tribunal had jurisdiction in this matter. Section 21 of the Act deals with the jurisdiction of that Tribunal. The present appeal may be pursuant to s.21(d), which provides for appeals against decisions of the second respondent in relation to the grant or refusal of an authorisation under the Act. No other part of the section seems applicable, although the section also contemplates the conferment of appellate jurisdiction by other provisions of the Act. I have found no such conferment relating to s.153. The difficulty with relying upon s.21(d) is that the former s.153 did not speak of "authorisation", but of "approval". Although in some circumstances, the words may be almost synonymous, the Act uses the expression "authorise" in relation to other functions of the second respondent. See ss.129 and 131. Once again, no submissions were made on this point, and I take it no further.

Fourthly, s.31 of the Act provides that a notice of appeal must be filed within 28 days of receipt by the appellant of notice of the relevant decision. Section 31(3) provides:-

"If the chief executive fails to notify an applicant of the grant or refusal of an application within 30 days after the end of the time within which all steps required or permitted by this Act to be taken in respect of the application must be taken, then, for the purposes of an appeal, the chief executive is taken to have given to the applicant notice of a decision to refuse the application at the end of the period of 30 days."

As the application was made on 2 November, 1994, there was a deemed notification of refusal on 2 December. The period of 28 days for appeal commenced on 3 December, (see Acts Interpretation Act 1954, s.38) and so the notice of appeal on 9 January, 1995 was out of time. No point was taken concerning this circumstance. It also was not submitted that any significance attached to the fact that the period in which the chief executive was required to make the decision expired on the day on which the amendment came into effect.

I should also record that counsel for the second respondent indicated that he would abide the order of the Court and that in particular, he sought no order against the first respondent. Counsel for the third respondent indicated that the Tribunal would also abide the order of the Court, but he reserved the right to make submissions as to costs.

The appellant submits that s.20(1) of the Acts Interpretation Act operates to permit the second respondent to approve the sub-lease notwithstanding the amendment of s.153 of the Liquor Act. Section 20(1) provides that:-

"The repeal, amendment or expiry of an Act or a provision of an Act does not -

(a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or

(b) affect the previous operation of the Act or provision or anything suffered, done or begun under the Act or provision; or

(d) affect a penalty incurred in relation to an offence arising under the Act or provision; or

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

The appellant relies upon paras (b), (c) and (e). I shall deal firstly with paras (c) and (e). The appellant submits that, "the agreement to sub-lease comes within the confines of s.20(1)(c) and therefore s. 20(1) (e)". In other words, it is said that the appellant had, prior to the amendment, a right which is preserved by ss.20(1)(c) and (e), notwithstanding that amendment. The appellant describes that right as, "an inchoate or contingent right to operate a restaurant/dining room, night club/karaoke bar as a sub-lessee of the first respondent, subject to the approval of the second respondent." Elsewhere, it is described as, "a contingent right to enter into a sub-lease," and as, "a right to have the second respondent determine the application (for approval) on the merits."

The cases do not support the assertion of such "rights". The decision in Director of Public Works v. Ho Po Sang [1961] UKPC 22; [1961] AC 901 establishes that the mere hope or expectation that a public official will exercise a discretion in one's favour is not a right for the purposes of provisions such as s.20(1)(c). See pp.920-922. Similarly, in Robertson v. City of Nunawading [1973] VicRp 81; [1973] VR 819 at p.825-6, the Full Court of Victoria said:-

"The mere locus standi of a member of the community to take advantage of an enactment is not a right within the principle being discussed, for otherwise there could be no effective repeal or amendment of any such enactment ... . There must be a specific right. Resort to the enactment by the making of an application under it which looks to an expectancy of benefit from the application is not itself productive of such a right. The applicant, by reason of the mere launching of the application, acquires no vested right to have the application determined irrespective of the repeal of the enactment. The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure continued in the face of the repeal of the enactment under which it was instituted. This must be taken to be the effect of the judgment of the Privy Council in Director of Public Works v. Ho Po Sang."

Although that passage concerned the application of common law principles, at p.827, their Honours applied it to the operation of the Victorian analogue of s.20. See also Abbott v. Minster for Lands [1895] AC 425 at pp.430-2.

In a different category are persons who have identifiable rights which can only be implemented by reliance upon a non-discretionary decision of an official or a court. In such a case, provided the machinery for obtaining the appropriate decision has been invoked before the repeal or amendment, a provision such as s.20 will operate to preserve that right after repeal. See New South Wales Aboriginal Land Council v. The Minister (1988) 14 NSWLR 685, especially at pp.693-4.

The appellant submits that the decision of the High Court in Esber v. The Commonwealth of Australia [1992] HCA 20; (1991-2) 174 CLR 430 establishes a wider operation for s.20(1)(c). Esber, a former member of the Defence Force, was entitled to weekly payments in excess of $50 as compensation for injury. Pursuant to certain legislation ("the 1971 Act"), he could apply to redeem his weekly payments and take a lump sump in lieu. He made such an application which was rejected. He applied to the Administrative Appeal Tribunal for a review of that decision. After he had made that application, but before it was heard, the 1971 Act was amended so that a person such as Esber no longer had a right to apply for redemption. The amending legislation contained its own transitional provisions which, as the High Court held, preserved his right to prosecute his application to its ultimate conclusion. That part of the decision is not relevant for present purposes. However Esber also relied upon the Commonwealth analogue to s.20 in the following form:-

"Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ..."

Esber firstly submitted that his relevant right was a right to redeem the weekly payments. The majority of the Court considered that whether he had such a right depended upon whether the decision-maker was obliged to allow redemption if satisfied of the matters specified in the 1972 Act or whether there was a wider discretion to refuse the application. Their Honours considered it unnecessary to decide that question because they concluded that irrespective of the nature of his original claim, Esber's second submission, that he had a right to have the Administrative Appeals Tribunal determine his application to review the decision, was correct. At p.440, their Honours said:-

"If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v. The Minister (the Windbar claim):

'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.'

Once the appellant lodged an application to the Tribunal to review the delegates decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment' nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act."

Accepting that Esber's application to the Administrative Appeals Tribunal was broadly analogous to the appeal to the Liquor Appeals Tribunal in this case, the decision is of no assistance to the appellant. Esber acquired his right when he lodged his application to the Tribunal. The appellant had not taken this step at the time the amendment came into force because the decision in question had not yet been made. It is also submitted that for the purposes of s.20(1)(c), there was a right to have the original application to the second respondent determined according to the law as it was prior to the amendment. Clearly, there was no right to any particular decision. The matter was entirely within the discretion of the second respondent. The appellant had only a hope or expectation of a favourable decision. The submission is therefore inconsistent with the decisions in Ho Po Sang and Nunawading. Nothing in Esber undermines the authority of those decisions. An application for the exercise of an administrative discretion is not to be treated in the same way as an application for judicial or quasi-judicial review of a decision in exercise of such a discretion.

By way of completeness, I observe that s.20(1)(e) depends for its operation upon there being a right preserved by s.20(1)(c) and does not itself assist the appellant in establishing such a right. The appellant also seeks to rely upon the rights conferred by the sub-lease as being sufficient for the purposes of s.20(1)(c), but such rights are not rights arising under the legislation which was amended and so are not rights for the purposes of that provision.

Section 20(1)(b) purports to protect, "the previous operation of the (amended) Act ... or anything suffered, done or begun under the (amended) Act ...". The appellant argues that the application for approval began a process which is now protected by that provision. The words, "suffered" and "done" appeared in the Queensland precursor of this provision prior to the 1991 amendment, in the comparable Victorian section at the time of the decision in Nunawading, in the relevant federal provision at the time of Esber, and in the section relevant to the decision in Ho Po Sang. However, the use of the additional word "begun" (which was inserted in 1991) seems not to have had a precursor in the analogous legislation of this or other jurisdictions.

In argument, counsel referred to certain extrinsic material, including parliamentary debates and an explanatory note concerning the 1991 amendment. The explanatory note asserted that the new s.20 was, "a simplified version (of) ... to the same effect (as) ...", its predecessor. There was a brief summary of the purported effect of the new section, but there was no suggestion of any possible changes in meaning or effect. The Minister's second reading speech concentrated upon general notions of construction and the perceived value of using extrinsic aids to construction. There was also reference to the virtues of plain English. I find it difficult to accept the second respondent's assertion that we should infer that Parliament did not intend the 1991 amendment to change the meaning of s.20. Quite apart from anything else, the amendment of s.20(1)(c) had a quite dramatic, but apparently unheralded effect. Under the previous enactment, the section protected any right, etc. created prior to any repeal or amendment. In its new form, s.20(1)(c) protects only rights acquired under the Act or provision in question. Returning to s.20(1)(b), I find no ambiguity, obscurity, absurdity or unreasonableness in giving the word "begun" its ordinary meaning. Section 14B of the Acts Interpretation Act does not permit extrinsic material to be used to create difficulties of interpretation where none otherwise exists. If the word "begun" was intended to add nothing to the words "suffered" and "done", there would have been no point in inserting it. It may be assumed that its insertion was intended to extend the range of things which are not to be affected by the operation of the amendment in question, but it is still necessary to determine what is meant by that statement.

The preservation of anything "suffered" or "done" in analogous sections has been given limited effect. Of most assistance to the appellant is the decision of the Court of Appeal in Heston and Isleworth Urban District Council v. Grout [1897] 2 Ch 306. The Court was there concerned with legislation amending the power of a local authority to make a charge against certain householders. Before the amendment, the local authority had given a statutory notice having the effect of creating such a charge, and the householders had defaulted in payment. The question was whether or not the Interpretation Act, 1889 operated to preserve the benefit of the charge for the local authority, notwithstanding the subsequent amendment. At p.313, Lindley LJ said:-

"That, I think, lets in the provision contained in the Interpretation Act, 1889 ... which says: 'Where this Act, or any Act passed after the commencement of this Act, repeals any other enactment, then, unless the contrary intention appears, the repeal shall not ... (b) affect the previous operation of any enactment so repealed, or anything duly done or suffered under any enactment so repealed.' That to my mind preserves that notice and the effect of it. Then s.38 goes on to say: 'or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.' If there would otherwise be any doubt about the question, it appears to me that those enactments are amply sufficient to remove such doubt. I cannot come to the conclusion ... that the true construction of the Act of 1892 is to render the previous notice and everything done under it absolutely futile for future purposes."

The Judicial Committee distinguished this decision in Ho Po Sang (supra) at p.924, saying:

"In that case the position on August 1, 1894 was that the frontagers (householders), being in default, were under a liability and the local authority had a right. The liability of the frontagers was nonetheless a liability even though no claim in money could be presented against them unless and until the local authority executed the work. So, also, the local authority possessed rights on August 1, 1894. They possessed rights against the frontagers even though they could present no money claims unless and until they executed the necessary works.

The position in the present cases is different. The validity of anything 'duly done' before April 9, 1957 was not affected by the repeal. Accordingly the procedural steps which had been taken as a preliminary to obtaining a decision of the Governor were not invalidated: they were, however, rendered abortive for the repeal ended the hope or possibility of being given a building certificate. The lessee enjoyed no right which was kept alive. He did not have any right even of a contingent nature. He was not in the position of the local authority in the case just cited, for they possessed an existing right (corresponding with an existing liability in the frontagers) - even though the enforcement of the right depended upon their taking certain steps."

To similar effect is the decision in Nunawading (supra) at p.825-6. It follows from these cases that s.20(1)(b) in its previous form did not permit an extant application to proceed to ultimate determination as if the amendment had not occurred. However, the appellant submits that in its present form, the section protects a process begun under legislation which has been subsequently amended or repealed and that such process may be continued as if the amendment or repeal had not occurred. I am unable to accept this submission. Given the narrower meaning traditionally attributed to precursors of s.20(1)(b), it is likely that Parliament intended that things the subject of this paragraph be protected in the same way as were things the subject of its precursor, although the range of such things was extended by the addition of the word "begun". 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 any event, I cannot identify anything which can be reasonably described as "begun" in this case. The word implies the commencement of a process which remains incomplete. It is possible to describe an application for an approval as the beginning of the process of obtaining that approval, but such is not a common usage. It is more common to say that one has made an application for approval than that one has begun a process which may lead to the obtaining of approval. The word "begun" is more appropriately used in connection with proceedings such as legal proceedings which have a recognizable continuity over a period of time. Applications involving a series of prescribed sequential steps might also be described as "begun". There may be other examples. The present application had to be either granted or refused. It cannot be comfortably described as "begun" simply because it had not been decided. Even assuming that the application began some process, that process was not begun under the repealed provision which said nothing about such an application. Although it is likely that in order to obtain an approval under the former s.153, some sort of application would have been made, such a step was not expressly contemplated by s.153. The application cannot be accurately described as "begun" under the repealed provision.

The appeal should be dismissed with costs. Any application by the third respondent concerning costs should be made within seven days of the decision of the Court.

Government Employees) Act 1971(Cth)

Interpretation Act 1954

Under the Aboriginal Lands Act 1983

At a glance

Court

Decision date

Before

Source

Judgment (173 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (3)