O'Sullivan v Farrer

High Court of Australia|1989-07-01|Before: Gaudron JJ, Yeldham J, McHugh JJ, Mahoney J

The application elicited a number of objections, including one from Mrs. O'Sullivan ("the appellant"). Mr. C. R. Brahe L.M., Chairman of the Licensing Court of New South Wales, held that none of the objections had been made good and granted the application. On appeal to the Licensing Court constituted in accordance with s. 10 of the Liquor Act 1982 N.S.W. ("the Act"), it was held by majority (Mr. K. G. Hammond L.M. and Mr. J. L. Swanson L.M.) that no ground of objection had been made good but that the application should be refused in the exercise of discretion on the ground that "the public interest would be the better served by the retention of the off-licence (retail) in Progress Road, Mount Hutton, rather than permitting its removal to a site cheek by jowl with an existing hotel providing adequate packaged liquor facilities". The third member of the Licensing Court, Mr. P. G. Harvey L.M., was of the view that an objection under s. 45(1)(c) of the Act had been made good and that the application should on that account be refused.

On appeal to the Supreme Court of New South Wales (Yeldham J.) the decision of the Licensing Court was set aside and the decision of Mr. Brahe L.M. restored. It was held by his Honour that the Act did not confer a discretion to refuse the application on the ground relied upon by the majority in the Licensing Court. An appeal from that decision was, by majority, dismissed by the Court of Appeal of the Supreme Court (Hope and McHugh JJ.A., Mahoney J.A. dissenting). From that decision and order the present appeal is brought.

The Act, in s. 18, empowers the Licensing Court to grant certain licences, including an off-licence. It does not in terms confer power either to grant or to refuse an application for the removal of a licence from one location to another. However, ss. 45(2) and 57(1) and (4) assume the existence of that power, at least in relation to an hotelier's licence and an off-licence (retail). Section 45 is concerned with the grounds of objection which may be taken to the grant of an application and provides, in sub-s. (2), that:

Subject to section 57, objection to the grant of an application for, or for the removal of, a hotelier's licence or an off-licence to sell liquor by retail may be taken (whether or not an objection is also taken on a ground specified in subsection (1) or (3)) on the ground that the needs of the public in the neighbourhood of the premises to which the application relates can be met by facilities for the supply of liquor existing in, and outside, the neighbourhood. Section 57 deals specifically with applications for the removal of an hotelier's licence and an off-licence (retail). It relevantly provides with respect to an application for removal of an off-licence (retail):

(1) The court shall not grant an application for removal of an off-licence to sell liquor by retail to a place outside the neighbourhood of the premises from which it is proposed to remove the licence unless it is satisfied that the removal of the licence to the proposed new site will not affect detrimentally the interests of the public in the neighbourhood of the premises from which it is proposed to remove the licence.

(4) Section 45(2) does not apply to a removal of a licence to premises within the same neighbourhood as the premises from which it is proposed to remove the licence.

The terms of s. 45(2) and s. 57(1) and (4) require the Act to be read as conferring power to grant and to refuse applications for the removal of an hotelier's licence and an off-licence (retail) from one location to another, including from one location to another within the same neighbourhood.

In the present case it was found by Mr. Brahe L.M. and confirmed on appeal by the Licensing Court that the Progress Road premises and the Wilson Road premises are in the same neighbourhood, as that expression is used in ss. 45(2) and 57(1) and (4) of the Act. That finding has not been challenged and accordingly the issue for determination is whether the Act confines the power to refuse an application for removal of an off-licence (retail) from one location to another within the same neighbourhood so as to preclude refusal on the ground relied upon by the majority in the Licensing Court, that ground not having been taken as a ground of objection to the grant of the application. On behalf of the first respondent it was argued that s. 47 denies any general discretion to refuse an application on a public interest ground not taken as a ground of objection under s. 45(1)(c) of the Act. Additionally, it was argued that s. 57(4) of the Act expressly excludes from consideration the ground relied upon by the majority in the Licensing Court for refusal of the application.

As has already been mentioned, s. 45 specifies a number of grounds of objection that may be taken to the grant of an application, including, as is expressly recognized by s. 45(1)(c), an application for the removal of an hotelier's licence and an off-licence (retail) from one location to another. Section 45(1)(c) permits objection on the ground that "for reasons other than the grounds specified in paragraphs (a) and (b) and subsections (2) and (3), it would not be in the public interest to grant the application". By s. 45(1)(a) and (b) it may be objected that the applicant or a person directly or indirectly interested in the application or in the business or the profits of the business is not a fit and proper person to hold a licence or to be so interested. Section 45(2), as has already been noted, allows objection to be taken, subject to s. 57, to an application for, or an application for the removal of, an hotelier's licence or an off-licence (retail) on the ground that "the needs of the public in the neighbourhood of the premises to which the application relates can be met by facilities for the supply of liquor existing in, and outside, the neighbourhood". By s. 45(3) objections may be taken on specified grounds relating to the applicant (pars. (a) and (b)), on specified grounds relating to the premises (pars. (c) and (d)) and on the ground that "the quiet and good order of the neighbourhood will be disturbed if the application is granted" (par. (e)).

Section 47 of the Act makes express provision as to the existence of a discretion to grant or refuse an application in two situations. Section 47(1) confers a discretion to grant an application notwithstanding that a ground of objection specified in s. 45(2) or (3) is made out. Section 47(2) confers a discretion to refuse an application for a licence on a ground specified in s. 45(1)(a) or (b) notwithstanding that no such objection has been taken or made out, provided that the requirements of procedural fairness as set out in s. 45(3) are observed. The section is silent as to any discretion referable to the public interest considerations which may ground an objection under s. 45(1)(c) of the Act. We do not find it necessary to decide whether the expression "application for a licence" in s. 47(2) encompasses an application for removal of a licence.

Unless s. 47 is to be construed by application of the rule embodied in the maxim expressio unius est exclusio alterius, its silence as to the public interest considerations which may ground an objection under s. 45(1)(c) must be taken as indicating that the discretion, if any, conferred in relation to such considerations is unconfined by that section. The need for caution in the application of the expressio unius rule has often been remarked upon. See, e.g., Benning v. Sydney City Council [1] , per Fullagar J.; Rathborne v. Abel [2] , per Kitto J.; Houssein v. Under Secretary of Industrial Relations and Technology (N.S.W.) [3] .

(1958) 100 C.L.R. 177, at p. 196. 2. (1964) 38 A.L.J.R. 293, at p. 301. 3. (1982) 148 C.L.R. 88, at p. 94.

The application of the expressio unius rule to s. 47 would produce curious results. Its application to s. 47(1) would result in the Licensing Court having no discretion to grant an application if a public interest objection under s. 45(1)(c) were made good, whilst having a discretion to grant an application even though an objection were made good, for example, that the needs of the public could be met by existing facilities for the supply of liquor (s. 45(2)), that the premises lacked the minimum standard of accommodation (s. 45(3)(c)) or that the premises were in the immediate vicinity of a place of public worship, a hospital or a public school (s. 45(3)(d)). It is hardly to be supposed that the legislature intended that the specific matters adverted to in s. 45(2) and (3) of the Act might not defeat an application, yet intended that an objection on unspecified public interest considerations, if made good, should work an automatic defeat. In relation to s. 47(2), it is equally unlikely that the legislature intended the Licensing Court to have a discretion to refuse an application where no objection was taken or made out only if the applicant and his associates (if any) were not fit and proper persons. On that construction, assuming the applicant and his associates (if any) to be fit and proper persons, the Licensing Court would, for example, be required to grant an application which elicited no objection even if the premises were known to lack the minimum standard of accommodation, or to be in the immediate vicinity of a place of public worship, a hospital or a public school. These considerations lead to the conclusion that s. 47 is not to be construed by application of the expressio unius rule. Accordingly, it does not confine the discretion, if any, to grant or refuse an application on the public interest considerations which will ground an objection under s. 45(1)(c) of the Act.

Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made. See Water Conservation and Irrigation Commission (N.S.W.) v. Browning [4] , per Dixon J.; Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. [5] ; Murphyores Incorporated Pty. Ltd. v. The Commonwealth [6] ; Re Coldham; Ex parte Brideson [7] .

(1947) 74 C.L.R. 492, at pp. 504-505. 2. (1979) 144 C.L.R. 45, at pp. 49-50. 3. (1976) 136 C.L.R. 1, at pp. 12-13, 24. 4. (1989) 166 C.L.R. 338, at p. 347.

The public interest considerations which may ground an objection under s. 45(1)(c) are, in terms, confined to considerations "other than the grounds specified in paragraphs (a) and (b) and subsections (2) and (3)". But, these limits aside, the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (N.S.W.) v. Browning [8] , per Dixon J. See the discussion of the expression "in the public interest" in the context of liquor licensing legislation by Neasey J. in In re Thompson [9] . And the subject-matter to be decided, involving, as it does, the distribution and location of facilities for the supply of liquor, is one which has traditionally been seen as permitting the exercise of a broad discretion in the decision-making process. See Sandown Park Hotel Pty. Ltd. v. The Queen [10] . These considerations and the fact that s. 47 has no operation with respect to a public interest objection under s. 45(1)(c) lead to the conclusion that, save to the extent that the Act expressly provides otherwise, the Act confers a general discretion to grant or refuse an application by reference to those public interest considerations which will ground an objection under s. 45(1)(c) of the Act, whether or not an objection has been taken under that paragraph.

(1947) 74 C.L.R., at p. 505. 2. [1964] Tas. S.R. 129, at pp. 143-144. 3. (1963) 109 C.L.R. 521, at pp. 524-525.

Section 57(1), to which reference has already been made, imposes a specific limitation on the discretion to grant or refuse an application for removal of an hotelier's licence or an off-licence (retail) to a place outside the neighbourhood of the premises from which it is proposed to remove the licence. That sub-section requires that such application not be granted unless the Licensing Court "is satisfied that the removal of the licence to the proposed new site will not affect detrimentally the interests of the public in the neighbourhood of the premises from which it is proposed to remove the licence". It may be remarked that s. 57(1) posits that an application will be refused in the circumstances there contemplated, whether or not an objection to that effect has been taken or made out. However, the limitation in s. 57(1) has no operation in the present case which concerns an application to remove a licence to premises within the same neighbourhood. Section 57(4) deals specifically with an application of that nature and, according to the submissions made on behalf of the first respondent, renders the consideration upon which the majority of the Licensing Court based their decision to refuse the application wholly impermissible.

Section 57(4) operates to exclude an objection under s. 45(2) of the Act in the case of an application for removal of an hotelier's licence or an off-licence (retail) to premises within the same neighbourhood. It may, we think, be said with complete accuracy that the effect of s. 57(4) is to render a consideration whether "the needs of the public in the neighbourhood of the premises to which the application relates" (which words in their context refer to the premises to which it is proposed to remove a licence) "can be met by facilities for the supply of liquor" (s. 45(2)) wholly irrelevant to the determination of an application for the removal of an hotelier's licence or an off-licence (retail) to premises within the same neighbourhood. Either because it is a wholly irrelevant consideration or because it is a consideration which falls within s. 45(2) of the Act (and is on that account outside the permitted ground of objection which may be taken in the public interest under s. 45(1)(c) of the Act), it is not a consideration which could justify the exercise of a public interest discretion to refuse the present application.

Notwithstanding the reference in the decision of the majority of the Licensing Court to the proposed new premises being "cheek by jowl with an existing hotel providing adequate packaged liquor facilities", we do not understand that decision to have been based upon the consideration specified in s. 45(2) of the Act, namely, that the needs of the public in the neighbourhood of the proposed new premises could be adequately met by existing facilities for the supply of liquor. Rather, as we read their decision, the learned magistrates had regard to the general amenity of the neighbourhood and the convenience of the members of the public resident in and frequenting the neighbourhood. The observation that there were already adequate packaged liquor facilities was no more than an acknowledgment that, had the facilities been inadequate, that consideration would have been taken into account in any decision based on general considerations of public amenity and convenience.

General public amenity and convenience are matters which fall within ordinary conceptions of the public interest, particularly when regard is being had to the regulation of the sale and supply of liquor to members of the public. They are matters which do not fall within the grounds specified in s. 45(1)(a) and (b), (2) and (3) of the Act. Accordingly they are matters upon which an objection might have been taken under s. 45(1)(c) and by reference to which the Act confers a discretion to grant or refuse an application, whether or not an objection has been taken under that paragraph.

The appeal should be allowed. The orders of the Court of Appeal of the Supreme Court of New South Wales should be set aside. In lieu thereof it should be ordered that the appeal to that Court be allowed with costs, that orders 4, 5 and 6 of Yeldham J. be set aside, and in lieu thereof that the appeal of Ronald James Farrer be dismissed with costs.

This appeal involves the proper construction of certain provisions of the Liquor Act 1982 N.S.W. ("the Act"). The differences of opinion the litigation has elicited at its various stages indicate that the task of construction is no easy one.

Before Mr. Brahe L.M., Chairman of the Licensing Court of New South Wales, the first respondent, Mr. Farrer, applied for the conditional removal of an off-licence (retail) from premises in Progress Road, Mount Hutton to premises in Wilson Road, Mount Hutton. Both premises are within "the same neighbourhood" for the purposes of the Act. There were a number of objectors to the application including the appellant, Mrs. O'Sullivan. In the end the only objection pursued by the objectors was based on s. 45(1)(c) of the Act, namely, that "it would not be in the public interest to grant the application". The public interest was said to lie in the contention that the site in Wilson Road was subject to a restrictive convenant precluding the sale of liquor. The Chairman took the view that it was not his function to determine the enforceability of the covenant, other than to note that the applicant had an arguable case that he was not bound. The Chairman concluded that the objection based on public interest had not been sustained. He therefore granted the application.

On appeal to the Full Bench of the Licensing Court, Mr. Hammond L.M. and Mr. Swanson L.M. were of the opinion that the existence of the restrictive covenant was not a matter of public interest. They concluded that "no grounds of objection have been sustained" but that "the Court still has a discretion to refuse the application" and that they were "of the view that the public interest would be the better served by the retention of the off-licence (retail) in Progress Road, Mount Hutton, rather than permitting its removal to a site cheek by jowl with an existing hotel providing adequate packaged liquor facilities". They therefore allowed the appeal and refused the application.

The other member of the Full Bench, Mr. Harvey L.M., thought that the existence of the restrictive covenant was a matter of public interest, that it was for the applicant to remove any doubt as to the operation of the covenant, that Mr. Farrer had failed to do so, and that this consideration, together with the need for the Court to be satisfied that removal of the off-licence (retail) would be in the public interest, warranted refusal of the application.

On appeal to the Supreme Court of New South Wales, Yeldham J. held that, unless expressly provided, the Act conferred no discretion to refuse an application for the removal of a licence where no grounds of objection had been made out. His Honour therefore allowed the appeal and restored the decision of Mr. Brahe L.M.

The Court of Appeal by majority (Hope and McHugh JJ.A, Mahoney J.A. dissenting) dismissed an appeal from the decision of Yeldham J.

Section 18(1) of the Act provides a starting point. It reads:

Subject to this Act, the court may grant a licence in a form approved by the Board authorising the licensee to sell liquor on the premises specified in the licence. An off-licence may take various forms; the licence in question is "to sell liquor by retail": s. 18(3)(a).

The grounds upon which objection may be taken to the grant of an application under the Act are set out in s. 45. Although the Act does not expressly confer power to grant an application for the removal of a licence, s. 45(2) assumes the existence of such a power for it speaks of "objection to the grant of an application for, or for the removal of, a hotelier's licence or an off-licence to sell liquor by retail". A similar assumption is to be found in ss. 4(5), 36(6), 38(2), 40(1), 43 and 57.

Section 45(1), (2) and (3) details various objections that may be taken to the grant of an application. For the most part they relate to the fitness of the applicant, the suitability of the premises and the good of the neighbourhood. Section 45(1)(c), to which reference has already been made, is by way of a residual objection on the ground of public interest. Section 45(2) permits objection, in the case of an application for or for the removal of a hotelier's licence or an off-licence (retail), "on the ground that the needs of the public in the neighbourhood of the premises to which the application relates can be met by facilities for the supply of liquor existing in, and outside, the neighbourhood". However, s. 57(4) withholds s. 45(2) as a ground of objection in the case of removal of a licence within the same neighbourhood. This is such a case and therefore s. 45(2) was not available to the objectors.

It is now possible to identify the question on which the appeal to this Court turned. It is whether the Full Bench of the Licensing Court was empowered to refuse the application for removal of the off-licence (retail) from premises to other premises within the same neighbourhood on the ground that removal would not be in the public interest, notwithstanding that the ground of public interest relied upon by Mrs. O'Sullivan and the other objectors was not held to have been made out, either by the Chairman of the Licensing Court or by the majority of the Full Bench. And, it should be said, Mrs. O'Sullivan did not seek, before this Court, to rely upon the particular objection originally taken.

Section 47 of the Act carries the heading, "Grant of application is discretionary in certain cases." While in some circumstances the heading to a section of an Act "shall be taken to be part of the Act" (Interpretation Act 1987 N.S.W., s. 35), this is not such a circumstance. The heading is mentioned here only because it identifies in a summary way what the section is about. It is helpful to set out in full the section as it stood at the relevant time:

(1) Notwithstanding a finding by the court that a ground of objection to the grant of an application specified in section 45(2) or (3) has been made out, the court has a discretion to grant the application.

(2) Notwithstanding that an objection to the grant of an application for a licence on the ground specified in section 45(1)(a) or (b) has not been taken or made out, the court may refuse the application if it finds, after subsection (3) has been complied with -

(a) that the applicant is not a fit and proper person to be the holder of a licence; or

(b) that a person directly or indirectly interested in the application, or in the business, or the profits of the business, to be carried on pursuant to the licence if the application were granted is not a fit and proper person to be so interested.

(3) A finding under subsection (2) may not be made unless -

(a) the applicant has been made aware of reasons for the possibility of such a finding;

(b) the applicant has been given an opportunity to make submissions, and adduce evidence related to those reasons; and

It is not too much of an over-simplification to say that the appeal turns on whether or not the provisions of the Act control exhaustively the discretion of the Licensing Court to refuse an application where an objection has not been taken or made out. Yeldham J. held that s. 47(2) is relevantly exhaustive; Hope and McHugh JJ.A. were of the same opinion. Mahoney J.A. concluded that s. 47(2) does not apply to an application for removal of a licence and furthermore that "the matters to which the Licensing Court may have regard in determining an application for removal of a licence extend beyond the matters on which objection may be taken under s. 45; and that, even in respect of matters within s. 45, there is a discretion to refuse notwithstanding that an objection has not been taken".

Whether one subscribes to the construction favoured by Yeldham J. and Hope and McHugh JJ.A. on the one hand, or that favoured by Mahoney J.A. on the other, there are apparent anomalies. For instance, if the Act is exhaustive as to the discretion of the Licensing Court, the Court has a discretion to grant an application notwithstanding that a ground of objection in s. 45(2) or (3) has been made out, but no such discretion if a ground of objection in s. 45(1), which includes "in the public interest" (s. 45(1)(c)), is made good. Again, on the same approach the Court may refuse an application pursuant to s. 47(2) because of the unfitness to hold a licence of the applicant or a person interested in the application, even though an objection under s. 45(1)(a) or (b) has not been taken or made out. But it has no such discretion to refuse even though the Court is satisfied that the premises are unsuitable or in the immediate vicinity of a place of public worship, a hospital or a public school.

What is the result of an approach that the Act is not exhaustive as to the discretion of the Court? Does it mean that, although s. 47(1) confers a discretion in the Court to grant an application even though a ground in s. 45(2) or (3) has been made out, the Court may also grant an application even though it would not be in the public interest to do so? Does it also mean that, although s. 47(2) empowers the Court to refuse an application in the circumstances there mentioned, the Court may also refuse on the ground that the premises are unsuitable or that it would not be in the public interest to grant the application, even though it has already held that an objection based on one or other of those grounds has not been made out? Those would appear to be the consequences of such an approach.

In construing a statute courts will seek to avoid a construction that produces anomalous results. But in a particular case the language of the statute may produce a construction that leads to such a result. It is then a matter for the legislature to consider whether some amendment to the statute is necessary. The point is that avoiding an anomaly is but a guide to construction. Its significance is further diminished when it appears that anomalies are inevitable whichever construction is adopted.

It is, I think, more profitable to look at the history of the legislation. Before the enactment of the 1982 legislation (the current statute) the view was held that there was a discretion in the Licensing Court to grant a licence even though a ground of objection had been established: Bradley v. Fitzmaurice [11] ; Lorence v. Abraham [12] . See also, as to comparable Victorian legislation, Marriott v. Coleman [13] ; Sandown Park Hotel Pty. Ltd. v. The Queen [14] . However, the legislation as it then stood did not, in specific terms, deal with the discretion of the particular court to grant or refuse a licence. No doubt, in that circumstance the discretion had to be exercised "having regard to the scope and purposes of the legislation": Re Coldham; Ex parte Brideson [15] .

[1974] 2 N.S.W.L.R. 286. 2. [1982] 2 N.S.W.L.R. 551. 3. (1963) 109 C.L.R. 129, at p. 140. 4. (1963) 109 C.L.R. 521. 5. (1989) 166 C.L.R. 338, at p. 347.

In Anthony Hordern & Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia [16] , Gavan Duffy C.J. and Dixon J. said:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. Section 18(1) of the present Act provides that the Licensing Court "may grant a licence" but the power thereby conferred is expressed to be "Subject to this Act". It is to the Act as a whole that we must go. And when we do go to the Act as a whole we find that the power of the Court to grant or refuse an application is now regulated in specific terms by s. 47. 1. (1932) 47 C.L.R. 1, at p. 7.

As the Act stood in 1982, the Licensing Court had a discretion, pursuant to s. 47, to grant an application even though an objection under s. 45(2) or (3) had been made out. That discretion still exists. But the Act conferred no such discretion if an objection based on public interest, which at that time comprised the whole of s. 45(1), had been made out. Nor was there a provision enabling the Court to refuse an application where no objection had been taken.

The Liquor (Amendment) Act 1984 N.S.W. amended the structure of s. 45 by separating grounds relating to the fitness of the applicant and persons interested in the application, on the one hand, and the suitability of the premises, on the other (though the separation was not complete); and by establishing a residual public interest ground in sub-s. (1)(c).

The Liquor (Further Amendment) Act 1985 N.S.W. introduced s. 47(2) so that the Court might refuse an application because the applicant or any person interested was not a fit and proper person to hold a licence even though no objection under s. 45(1)(a) or (b) had been taken or made out. The amending legislation also introduced s. 47(3) which precludes the Court from making a finding under the preceding sub-section unless the applicant has been made aware of reasons for the possibility of such a finding and has been given an opportunity to make submissions and adduce evidence related to those reasons. Section 47(2), as already mentioned, confers no such power to refuse in the absence of objection where public interest is involved.

Sections 45 and 47 have each been amended since 1985 (see Liquor (Amusement Devices) Amendment Act 1986 N.S.W.). The amendments are of no significance for the purpose of this appeal. What is significant is that no steps have been taken to extend the power to refuse conferred by s. 47(2) to the ground of public interest referred to in s. 45(1)(c). This can hardly have been an oversight on the part of the legislature.

And it is worth considering the practical implications of the view that there is an overriding discretion in the Court to refuse an application on the ground of public interest. Is it available, to borrow the language of s. 47(2), if an objection has not been taken or if an objection has not been made out or in either case? Section 46 establishes the procedures by which an objection may be taken. This involves the giving of notice to the applicant and the specifying of a relevant objection. Section 47(3) has its own procedures to ensure that the Court does not act pursuant to s. 47(2) without notice to the applicant and affording him the opportunity to be heard. If the Court has the overriding discretion contended for, the notice requirements are not applicable. Indeed, in the case now before this Court, the Licensing Court refused the application on its own initiative without any opportunity to the applicant to meet the case that was found against him.

In other respects the circumstances of the present case point up the difficulties into which the argument that the Act is not relevantly exhaustive runs. The Court did not found itself on any of the grounds of objection in the Act other than to say that the public interest would be better served by the retention of the licence in Progress Road rather than its removal "to a site cheek by jowl with an existing hotel providing adequate packaged liquor facilities". This formulation is not very different from the language of s. 45(2); yet an objection under that sub-section is expressly stated by s. 57(4) to be unavailable in the case of removal of a licence within the same neighbourhood.

The scheme of the Act, in particular the existence of s. 47, is quite at odds with the broad discretion for which Mrs. O'Sullivan contends.

The appellant sought to make something of the shift in language between "the grant of an application" in s. 47(1) and "the grant of an application for a licence" in s. 47(2). In my view the difference is of no present significance. Section 18(1) empowers the Licensing Court to "grant a licence". Generally, the Act speaks of objection to "the grant of an application" or "an application": see, for instance, s. 45(1), (3), (4). While s. 45(2) identifies a particular ground of objection "to the grant of an application for, or for the removal of, a hotelier's licence or an off-licence to sell liquor by retail", it was not argued by the appellant that neither s. 45(1) nor s. 45(3) was available where what was sought was the removal of a licence. Indeed the objectors had expressly invoked s. 45(1)(c). In any event, even if the appellant were right, it is arguable that s. 47(2) does not apply to an application for removal of a licence because the fitness of the applicant has already been considered by the Court on the original application for a licence. If so, the proposition that the Act is exhaustive as to the circumstances in which the Court may exercise a discretion to grant or refuse an application for a licence or the removal of a licence is in no way weakened. Such a limited operation for s. 47(2) readily finds its place within the section.

Although counsel did not rely upon s. 57 of the Act in support of or in answer to the proposition that the Act is exhaustive as to when an application may be refused, the section is not without significance in this respect. Section 57(1) precludes the Licensing Court from granting an application for removal of a hotelier's licence or an off-licence (retail) to a place outside the neighbourhood "unless it is satisfied that the removal of the licence will not affect detrimentally the interests of the public in the neighbourhood of the premises from which it is proposed to remove the licence". Section 57(2) empowers the Court to refuse an application for removal of a hotelier's licence "if it considers that the removal would adversely affect the interests of the owner or a lessee or mortgagee of the premises from which it is proposed to remove the licence, or a sublessee from a lessee or sublessee of those premises". Neither sub-section relates to an objection; but each serves to notify both Licensing Court and applicant of an additional ground upon which removal may be refused. The section is therefore another instance of the powers of the Court being circumscribed by the Act or required to be exercised within defined limits.

If I am right in the view taken of the Act, the Licensing Court is not powerless in a situation such as arose here. McHugh J.A. has pointed out that if the Court considers there to be a ground of public interest not taken by an objector, it may invite the objector to amend or make an objection to give effect to the Court's concern. If there has been no objection filed, the Court may invite the Licensing Inspector to raise the matter by way of objection. The procedural requirements of s. 46 would then apply.

High Court of Australia Mason C.J. Brennan, Dawson, Toohey and Gaudron JJ. O'Sullivan v Farrer [1989] HCA 61

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