2. The stay is sought until the hearing and determination of an application for review of that decision.

3. The application for stay is sought as part of the application for review. It is before the Tribunal pursuant to Schedule 3, 2(2), (3) & (5) of the Liquor Control Reform Act 1998. Schedule 3, 2(5) provides:

"(5) A person who would be entitled to apply for review of a determination of the Commission under sub-clause (2) by virtue of section 105 of the repealed Act may apply to the Tribunal for review of the determination and the repealed Act applies to that review as if a reference in the repealed Act to the Full Commission were a reference to the Tribunal."

4. The Liquor Control Act 1987 (now repealed) (the "1987 Act") contains no express power for the Commission to grant a stay. That there is inherent power in the Commission to grant a stay is an accepted proposition following the decision in Metro Palace Pty Ltd v Liquor Licensing Commission and Ors (Full Court, judgement 19 May 1987).

5. Metro op cit is authority for two important propositions. First that there is an inherent power in the Commission to grant a stay and second that the power to grant a stay is discretionary.

6. There have been a number of Commission decisions in relation to applications for stay. In Benomen Pty Ltd (Liquor Licensing Decision No 496) Commissioner Bond set out a number of principles recognised and adopted by the Commission for the consideration of stay applications. In my view it assists to set out the relevant passage from that decision commencing at page 2:

"1. There is inherent power in the Commission to grant a stay although not expressly so stated in the Act. That proposition flows from Metro Palace Pty Ltd, the Liquor Licensing Commission and Ors_. (Unreported judgment) 19.5.89._

2. The power to grant a stay is discretionary and will be exercised after full consideration of the circumstances and facts of each particular case.

3. The lodging of an application for review will not automatically operate to grant a stay.

4. The principles relating to an application for stay in civil litigation, set out in Celante & Anor v G. Kallis Industries Pty Ltd [1991] VicRp 99; (1991) 2 VR 653 are not necessarily those to be followed in respect of matters before this tribunal. This Commission does not deal with litigation inter partes but decides issues in the community interest - See Boulton v Justices of Kent [1897] App Cas 556 at 569 approved by the Full Court in R v Liquor Control Commission ex parte Woolworths Victoria Limited [1972] VicRp 58; (1972) VR 514 at 520.

5. The Commission deals with a wide range of applications.

(a) Grants or transfers of licences/permits (the creation of a right/privilege);

(b) Variations to licences or permits which may extend the privilege or may decrease an existing right;

(c) Disciplinary proceedings which may impose penalties, restriction of a previously existing right or even cancel/suspend the licence or permit; and

(d) Proceedings against individuals eg. Objections to their suitability or capacity to be involved in licensed premises or disqualification as to their future involvement.

Those are the four main categories with some residual applications that are of a minor nature and do not fit neatly into those classifications.

It will be clear, the matters the Commission may take into account in determining whether or not to grant a stay may well vary with the nature of the application made. It would be fair to say that in accordance with general legal practice, in categories (c) & (d) where existing rights are to be adversely affected or punitive measures imposed, it is more likely a stay will be granted than is the case when no legitimate expectation of a new privilege could be said to exist.

6. The criteria that will be often appropriate in deciding whether a stay should be granted in matters before this tribunal may include:

* whether the failure to grant a stay will render the appeal nugatory.

* whether there is a serious question to be tried on review.

See Re Castlemaine Tooheys [1986] HCA 58; 67 ALR 553 at 557 where Mason ACJ said

"the principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases including constitutional cases, notwithstanding the different factors arising for consideration. In order to secure such an injunction the plaintive must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is probability that at trial of the action the plaintiff will be held entitled to relief."

* whether it is in the community interest that a stay be granted. This will necessarily involve a consideration of "the need to protect the private interests of the plaintiff and the necessity to weigh them against the public interest (Castlemain Tooheys).

* Public policy grounds cf Charlton v The Teachers Tribunal [1981] VicRp 79; [1981] VR 831 where perceived inconsistencies by the public at large may lead to diminished respect and authority for the tribunal and is administration. This is particularly so where there is internal review within the one body as is the case with this Commission. It is usually better that a "final" decision be seen to emanate from the tribunal, being the ultimate decision of the Full Commission if the matter goes to review.

* The length of time likely to elapse before the hearing of any appeal for whatever reasons.

* Consideration of whether if, in the grant of a new or extended privilege, the interim exercise of that privilege will prejudice the position of representors or objectors on review and whether such an exercise may alter the position of the application before the Full Commission, to the extent that the review will no longer be a re-hearing of the original application.

* The prejudice accruing to either party by the grant/refusal of the stay.

* The alacrity or otherwise of the applicant for stay in notifying this Commission and other parties of its intention and if necessary lodging an application for review.

* Whether a successful applicant in the proceedings at first instance has taken any action to reap the fruits of any order made.

* Other matters relating generally to the type of application and nature of the order made on the original hearing."

7. In reaching my determination I rely on and take these principles into account.

FAILURE TO GRANT A STAY WILL RENDER THE APPEAL NUGATORY

8. Mr Larkins conceded that the failure to grant a stay in the present circumstances will not render the appeal nugatory. I take this into account and find the application must fail on this test.

9. Mr Larkins contended that a number of substantial issues are raised in the application for review, matters which he argued meet the test of a "serious question to be tried". The matters he referred to included:

1. The agrievement of his clients in being referred to as "dummies";

It was his submission that the case for review was not just a case of close proximity but very close proximity and submitted that strong and vital section 76(2)(b) (of the 1987 Act) matters were at issue.

3. Amenity issues relating to traffic and parking matters at the rear of the strip shopping centre; and

10. Mr Larkins referred to diverse views in recent Liquor Licensing Commission decisions and argued the possibility of the Applicant for Review succeeding should not be discounted. He enlarged on the impact on the community of licences opening and closing.

11. Mr Bryant agreed that the fundamental focus for consideration of the granting of a stay was that the Applicant must establish that there is a serious question to be tried on review. However he contended that it is necessary to establish this on evidence before the Tribunal. He contended there was no factual basis for saying a stay ought to be granted as the only material put before me related to the actual decision of Commissioner Horsfall at first instance.

12. It was not Mr Bryant's contention that the case itself should not be reviewed or that the review was ill founded or in some way incorrectly bought. Rather it was his argument that the proximity of commercial competitors, the question of the use of the word dummies and allegations of weak demand evidence were insufficient material to satisfy the inquiries I should make in accordance with established principles in deciding to grant a stay.

13. Mr Bryant referred me to a number of authorities:

Castlemaine Tooheys Ltd & Others v State of South Australia 67 ALR p553.

Celante and Another v Kallis (1991) 2 VR p653 (Full Court).

Middle Harbour Investments Ltd (in Liquidation) unreported New South Wales Court of Appeal 15th December 1976.

K.W. Investments Pty Ltd and Others v Liquor Licensing Commission and Bernard John Cummins Supreme Court of Victoria (Beach J) 30th November 1990.

Alexander & Others v Cambridge Credit Corporation Ltd (1985) 2 NSWLR p685.

14. I have considered these cases and the principles enunciated in them.

15. I accept that the application for review is properly founded however, whilst I agree the matters raised by Mr Larkins may legitimately be debated on review, I find they do not meet the serious question to be tried test. In finding that there is no serious question to be tried I must highlight that such finding should not be interpreted as prejudicing the substantial review. I have only considered the merits of granting the interlocutory order. The issues for review are quite discreet.

16. Mr Larkins argued the Tribunal is charged pursuant to section 5 of the 1987, Act with overseeing the "proper development of the industry" in the context of the community interest. He submitted that this should and would embrace the maintenance of public confidence in the Commission and its procedures. He argued that public confidence would be brought into question if the community observe and perhaps act upon the commencement of trading only to discover that the licence ceases operation a short time thereafter. It was his argument that such a course of events must give rise to confusion and perhaps an inference of arbitrary measures and inefficiency in the Tribunal and its procedures.

17. I have considered the question of community interest. I do not accept that to disallow the stay will lead to uncertainty of such a nature to require one to grant a stay.

18. In my view there is insufficient evidence of adverse impact on the community. Certainly no damage or loss to the community interest was argued before me.

19. I reiterate my view, previously expressed (see Liquor Licensing Decision Number 492, Filby,) that until a decision is reversed, overturned or affirmed the decision of the Commission stands and can be acted upon, otherwise there is a danger that decisions at first instance may be reduced in terms of the stature they currently carry. They must continue to be capable of being acted upon. It is the second respondent's risk if he chooses to commence trading prior to the determination of the review.

20. Mr Larkins contended that it was generally desirable before a decision is acted upon that it is a final decision which is acted upon. He contended in circumstances where there is an appeal on the merits, a stay should usually be granted (where the application to stay is made promptly). He argued there was no delay in lodging this application. Mr Larkins submitted the fruits of judgement argument can be distinguished here on the basis that there is provision within the 1987 Act for "internal" review. He argued therefore the applicant for the licence cannot be said to have received a "final" decision of the Commission. He sought to rely upon K W Investments and Others v Liquor Licensing Commission and Bernard John Cummins Supreme Court of Victoria (Beach J) 30 November 1990 in this regard. I have considered this argument. Whilst in some circumstances it may be better that there be a final decision I do not find that to be the case in the circumstances of this application when balanced against other criteria.

21. I have considered time factors and find the time likely to elapse before the hearing of the review will not be lengthy.

22. I find in all the circumstances no prejudice accruing to either party such to persuade me to grant a stay.

23. I am not persuaded that there are any special circumstances nor that it would be in the community interest to adopt a course other than in accordance with the well established rule that a successful litigant is entitled to the fruits of his victory. The application for stay is therefore dismissed.