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[2015] NSWCA 254
Court of Appeal (NSW)
2015-08-05
Beazley P, Gleeson JA, Adamson J
Original judgment source is linked above.
Solicitors: Hatzis Cusack Lawyers (Applicant) Crown Solicitor's Office (Respondents) File Number(s): 2015/12546 Decision under appeal Court or tribunal: Supreme Court Citation: La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2014] NSWSC 1798 Date of Decision: 17 December 2014 Before: Adamson J File Number(s): 2013/357278
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[This headnote is not to be read as part of the judgment] La La Land Byron Bay (La La Land) was the holder of an extended trading authorisation (ETA) granted under the provisions of the Liquor Act 2007 (NSW) (the Act). On 4 December 2013, the Independent Liquor and Gaming Authority (the Authority) varied La La Land's Sunday trading hours from its authorised 3 am closing time to 12 midnight. La La Land filed a summons under the Supreme Court Act 1970 (NSW), s 69 for review of the Authority's decision. That summons was dismissed by Adamson J on 17 December 2014. La La Land sought leave to appeal, and if leave be granted, to appeal from the decision of Adamson J. In dismissing La La Land's summons seeking leave to appeal, the Court held: Adamson J was correct to find that: (1) There was no error in the Authority's statement and application of the "public interest" test, as prescribed by s 3 of the Act. [17] (2) The Authority correctly construed s 49(8) of the Act as: (a) affirmative conditions that must be satisfied before an ETA is granted, which does not imply that when revoking or varying an ETA the Authority must be satisfied that those conditions no longer exist; [26] and (b) relevant factors that the Authority was bound to take into account; [27] and properly applied this construction in its decision. (3) La La Land failed to establish that relevant mandatory considerations existed under the Act to which the Authority had failed to afford proper, genuine and realistic consideration. [35, 37-38]. (4) La La Land failed to establish that the Authority's decision was indicative of or constituted bias as a result of public statements by the Chairman of the Authority or meetings between the Authority and NSW Police. [47, 50] (5) La La Land failed to point to evidence which indicated that the Authority's decision was affected by legal unreasonableness. [62] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.
Obiter: The Court commented on the extent of reasons required in refusing a grant of leave. Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [26].
Judgment
Principles governing the grant of leave
Extent of reasons necessary to determine whether leave should be granted
Matters in issue
The relevant legislation
Grounds 1 and 2: application of the incorrect test and failure to appreciate the matters the Authority was obliged to have regard to pursuant to s 3 of the Liquor Act
Ground 3: failure to take into account mandatory relevant considerations
Grounds 4, 5 and 6: bias
Ground 7: legal unreasonableness
Conclusion
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La La Land Byron Bay Pty Limited
The Independent Liquor and Gaming Authority