Article by Eagul Faigen and Nathalie Rassool
On 5 September 2008, in the case of Hancock v Executive Director of Public Health [2008] WASC 224, Martin CJ in the Supreme Court of Western Australia quashed a decision of the Liquor Commission (Commission)/Delegate of the Director of Liquor Licensing (Delegate) to reject an application for the grant of a hotel restricted licence (HRL), on the basis that the Delegate and Commission had failed to afford the applicant procedural fairness as required under the Liquor Control Act 1988 (WA) (Act).
This is a landmark appeal in Western Australia as it is the first ever appeal to the Supreme Court of Western Australia from a decision of the Commission. However, the importance of this decision may very well extend into other Australian jurisdictions. The decision provides future guidance to the liquor industry in relation to the procedure required to be followed by licensing authorities in assessing applications for liquor licences generally.
The facts
The Delegate rejected the application for an HRL on the basis that the appellant had not discharged the required onus under the Act of satisfying her that the grant of the application was in the public interest. The appellant sought a review of the Delegate's decision by the Commission and the Commission upheld the Delegate's decision. The appellant then appealed to the Supreme Court of Western Australia.
Procedural fairness
Chief Justice Martin upheld the appeal in the Supreme Court on a number of grounds, with one of those grounds being that both the Delegate and the Commission were obliged under the Act to comply with the requirements of procedural fairness and that in this case, the appellant was denied this.
In his judgment, Martin CJ states that procedural fairness requires that a decision maker contemplating making a finding adverse to a party whose interests are likely to be affected by the decision, put that party on notice of the prospect of such a finding and provide that party with the evidence to be relied upon for the purposes of such a finding. The obligation of procedural fairness also requires the decision maker to give the relevant party adequate opportunity to present evidence or submissions to the licensing authority in opposition to that prospective finding.
Chief Justice Martin states that this requirement to afford procedural fairness falls within section 16(11) of the Act which provides that the licensing authority shall ensure that each party to an appeal is given a reasonable opportunity to present its case.
Chief Justice Martin notes that the reasons of the Delegate were not made known to the appellant before such reasons appeared in the Delegate's decision and that therefore, the appellant was deprived of any opportunity to put any submissions before the Delegate in response to the conclusions she drew.
Chief Justice Martin ordered for the recommencement of the process before a differently constituted office of the Director of Liquor Licensing.
The application of the procedural fairness requirement to licensing authorities in other Australian jurisdictions
There is a case to argue that licensing authorities in most, if not all, Australian jurisdictions have a procedural fairness obligation imposed on them when assessing liquor licence applications.
Legislation which corresponds with the Act in the other Australian jurisdictions,1 also provide liquor licence applicants with a right of review of a decision of the relevant licensing authority. This right of review may be enough to impose an obligation on the licensing authority to afford a liquor licence applicant procedural fairness. The Victorian liquor licence legislation is the most similar to the Act in that it also imposes an obligation on licensing authorities to grant applicants a reasonable opportunity to have their case heard.2
Conclusion
Chief Justice Martin's judgment reinforces the obligation on licensing authorities in Western Australia to apply proper procedures when assessing liquor licence applications and as a result, liquor licence applicants now have greater certainty that their interests will be dealt with fairly.
Footnotes
1 Liquor Act 2007 (NSW); Liquor Act 1975 (ACT); Liquor Act 1978/1979 (NT); Liquor Act 1992 (Qld); Liquor Licensing Act 1997 (SA); Liquor Licensing Act 1990 (Tas); and Liquor Control Reform Act 1998 (Vic).
2 Section 46 of the Liquor Control Reform Act 1998 (Vic).
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