The Act contained a privative provision. The High
Court held that the Authority was not properly
"satisfied" (and so was
lacking in power) if its
opinion was based upon a misconstruction of the
regulation. At p 430 Latham C.J. said that the opinion
must be such -
"... that it can be formed by a
reasonable man who correctly understands the meaning
of the law
under which he acts. ... A person acting
under a statutory power cannot confer power upon
himself by misconstruing the
statute which is the
source of his power."
The majority held that evidence as to the rates
being anomalous, in the sense
of their being
incongruous with an existing rule, was lacking, so the
Authority was not properly satisfied, and prohibition
lay.
(4) In Paull v Munday (1976) 50 ALJR 551, the
Governor was empowered under an Act to prohibit by
regulation the emission of impurities from open fires.
The High
Court by majority held that this did not
empower the prohibition without prior approval of the
source of the impurities, the
open fires, per se. It
had been submitted that there was no practical way of
preventing emission of impurities from an open
fire
without putting out the fire or preventing it from
being lit; and so the practical effect of the
regulation was to
do no more than was empowered.
Mr McDonald submitted that it was this type of error
which the Commission had made in this case,
in
believing that it could consider the needs and wishes
of the community when it came to the transfer of the
licence.
In Paull's case Gibbs J. at p 554 said -
"This argument is at first sight
attractive, but it pays too little attention
to the
words granting the power. It 'passes by the actual
words' and seeks to give (the provision) an effect
which
is 'supposed to be something equivalent to the
language used by the legislature', to adapt some words
of the Earl of Halsbury
L.C. in Gresham Life Assurance
Society Ltd v Bishop (Surveyor of Taxes) (1902) AC
287 at p 291. A power to do one thing cannot be
validly exercised by doing something
different, even if the effect of what
is done is the
same as that which would have resulted from doing what
was permitted ... where a statute allows certain
means
to be adopted, it does not permit the adoption of
different means which happen to lead to the same end.
At p 556
Stephen J. said -
"... my real objection is that (the
submission) ignores the carefully restricted scope of
the relevant
(provisions) and attributes to par.(c) a
breadth of meaning which the paragraph itself does not
call for and which the
scheme of the section, viewed
as a whole, negates.
...
In Australian Boot Trades Employees' Federation v
Whybrow
and Co. [1910] HCA 53; (1910) 11 CLR 311 Isaacs J. pointed
out at p 338 -
'Where both end and means are strictly
marked out, there is no right ... to use other
means
to attain the specified end ...'
... and (it) is impermissible."
Mr McDonald submitted that this was the type
of
error into which the Commission had fallen in this
case: it had to determine whether an applicant for a
grant of a licence
was a "fit and proper person" in
terms of s.28(1), and not simply whether a transferee
under s.41 was so qualified.
(5)
In Anisminic Ltd v Foreign Compensation
Commission (1968) 2 AC 147 the Commission reached an
erroneous conclusion by misconstruing a provision and
thereby
addressing itself to a consideration
- whether the
successor in title to the applicant was or was not a
British subject - in a case where on the facts that
issue
was not a relevant consideration. The House of
Lords held that in consequence the Commission's
decision was a nullity. At
p 171 Lord Reid said:-
"... there are many cases where, although
the tribunal had jurisdiction to enter on the inquiry,
it has done or failed to do something in the course of
the inquiry which is of such a nature that its
decision is
a nullity. ... It may in perfect good
faith have misconstrued the provisions giving it power
to act so that it failed to
deal with the question
remitted to it and decided some question which was not
remitted to it."
And at p 174:-
"The
Order requires the Commission to
consider whether they are satisfied with regard to the
prescribed matters. That is all they
have to do. It
cannot be for the Commission to determine the limit of
its powers. ... if they reach a wrong conclusion as to
the width of their powers, the court must be able to
correct that - not because the tribunal has made an
error of law, but
because as a result of making an
error of law they have dealt with, and based their
decision on a matter with which, on a true
construction of their powers, they had no right to
deal. ... (and) their decision is a nullity."
B. The other objectors' submissions
- Mr Stone appeared for the two objectors mentioned earlier and a third
company Barn Developments Pty Ltd; they had been granted
leave to appear. He
adopted Mr McDonald's submissions and submitted further that the Commission
lacked power to grant a "licence
in principle", and that, since the Commission
was a creation of statute, it possessed only those powers which could be found
within
the Liquor Act.
C. The Commission's attitude
- The Commission did not seek to be heard in support of its decision. It
appeared
for the purpose of submitting to any order made, except as to costs.
D. The second respondent's submissions
- Mr Beazley for the
second respondent submitted that essentially a question
of statutory interpretation was involved, the central issues being whether
the
Commission had power to approve "in principle" the grant of a licence, and
what that involved.
- As to the requirement in
s.25(2) that a manager be nominated "where a
body corporate applies for a licence", Mr Beazley submitted that this did not
necessarily
require that the manager be nominated at the time of lodging the
application; the manager could be nominated at some later time,
before a
licence was granted. I do not think that this submission is correct. The Act
clearly places great importance on the manager
nominated; he is deemed to be a
joint applicant with the body corporate (s.25(4)), the application form under
s.26 contemplates his
nomination therein, and the Commission may investigate
him (s.28(3)). I consider that the body corporate must nominate its manager
when it lodges its application, that is, at the outset. See Bond v Denton
[1933] SAStRp 25; (1933) SASR 112 at p 115.
- As to s.48(1), Mr Beazley submitted that since objection could only be
made on an application for the grant or renewal
of a licence, it was clear
that no objection could be entertained on an application for the transfer of a
licence. Accordingly,
he submitted, the second respondent could have applied
on the basis that it would itself conduct the business in question and having
thereby obtained the grant of a licence it could then immediately have applied
to transfer that licence to another operator, and
at that stage no public
objections could be entertained. I consider that this submission is correct.
It is curious that there is
no provision for objection to a transfer of a
licence, a common provision in the liquor legislation in other jurisdictions.
The absence
of such a provision sits somewhat oddly with s.42, under which the
Commission may require that the application for a transfer be
advertised. In
any event, the fact is that the second respondent did not choose to pursue its
application in this way.
- Mr Beazley
submitted that the grant of a "licence in principle", where
the application is for a licence in respect of premises yet to be built,
could
come about in one of two ways. The first envisages that the applicant presents
a good deal of detail about its proposal, as
was done here, the objectors then
put their submissions on all the matters listed in s.32(1), including the
needs and wishes of the
community, and the Commission after considering these
matters rules that it is satisfied that subject to the completion of the
premises,
and the determination of the conditions of the licence under s.31, a
licence should be granted. The Commission does not grant a
licence at that
stage; it adjourns the further hearing of the application until the premises
are complete, and proceeds at that time
to grant the licence having regard, in
determining the conditions under s.31(2), to the factors to be considered
under s.32.
I consider that such an approach is permissible under the Act. It has
much practical merit. As the Commission's reasons make clear
(pp 11,12), it
is necessary as a practical matter that before investment is made in the
construction of a building, the entrepreneur
knows that provided he meets the
conditions required, he will obtain a licence upon completion. It appears to
me that this is the
approach which has been adopted by the Commission, when it
has made the grant of a "licence in principle". It is a reasonable and
sensible approach and one permitted by the Act when the applicant who proposes
to construct the building also proposes to operate
the business the subject of
the proposed licence.
Conclusions
14. However, I consider that this concept of the grant of a "licence
in
principle" does not meet the problem which arises when the person developing
the project does not propose to operate the premises
to be licensed. The Act
simply does not make provision for that situation. It contemplates only that
the applicant for a licence
is a genuine applicant in the sense that it
proposes to conduct the business on the licensed premises. All of the
provisions of
the Act proceed upon that basis. In the present case, once it
became clear that the second respondent did not propose to conduct
the
business on the premises the subject of the application, it followed that the
application was not by an applicant contemplated
by the Act and the Commission
ceased to have jurisdiction to entertain it. The Commission's ultimate
function under s.24 is to "issue
a licence ... to an applicant", its
investigations under s.28(1) are directed to ascertaining "whether (that)
applicant ... is a
fit and proper person to hold a licence", and in
considering whether to make a grant the Commission is to have regard under
s.32(1)(e)
to the financial and managerial ability of that applicant to
conduct the business in question. All of these matters point to the
applicant
being the person who proposes to conduct the business on the premises when
constructed.
15. I think it is clear that an
amendment to the Liquor Act is required to
cater for the situation revealed by this application. Mr Beazley drew my
attention to
s.64 of the Liquor Act 1985 of South Australia which institutes a
certificate system where an application is made in respect of proposed
premises; this provision appears to go part of the way, but may not meet the
situation facing the developer which obtained here.
What is required is a
provision which provides for a "developer's licence", as Mr Beazley put it; it
would be a "licence in principle"
in the ordinary meaning of those words. I
note that express provision is made in other jurisdictions (except Queensland)
for the
grant of some form of "licence in principle" for premises to be
constructed, whether it be termed a "conditional grant" (NSW and
Victoria), or
a "provisional certificate" (Western Australia and Tasmania) or a
"certificate" (South Australia). Note also para.307
of the Adams report of 28
June 1973.
16. The second possible approach to the grant of a "licence in principle"
suggested by Mr Beazley
was the actual grant of a licence subject to
conditions even though the premises were not built. It appears to me that
that lies
outside the contemplation of the Act, and indeed of the Commission.
17. As the law presently stands, the only avenue available to
the second
respondent appears to be that indicated in para.(f) on p 21. There is no
right "to use other means to obtain the specified
end", as Isaacs J. put it in
Whybrow's case (supra).
18. I am satisfied that the Commission has misconstrued its powers and, on
the authorities cited by Mr McDonald, that certiorari and prohibition lies in
the circumstances which obtain. It is unnecessary
to make the declaration
sought.
19. The application for certiorari and prohibition must be granted because
the Commission has embarked
upon a hearing of an application which, on the
facts now established, it does not have power to entertain. I direct that
certiorari
issue to the Commission removing to this Court instanter the
decision of the Commission of 21 April 1988 to continue with the hearing
of
the application of 22 September 1987 by the second respondent. The decision
of 21 April is quashed. I also direct that prohibition
issue to the
Commission prohibiting it from proceeding further to hear the application of
22 September and from granting a licence
in respect of that application.