Peter Iliadis; John Iliadis; Yfigenia Iliadis; Ilias Spyridopoulos and Despina Spyridopoulos v Registrar of Liquor Licences Sca [1987] ACTSC 66 (18 September 1987)

SUPREME COURT OF THE ACT

PETER ILIADIS; JOHN ILIADIS; YFIGENIA ILIADIS; ILIAS SPYRIDOPOULOS and DESPINA
SPYRIDOPOULOS v. REGISTRAR OF LIQUOR LICENCES
S.C.A. No. 21 of 1987
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Appeal - cancellation of off licence issued under the Liquor Ordinance 1975 - licence issued to three named persons - question whether "licensee" to be construed in s.51(1) as singular or plural - intention of legislature

Interpretation Ordinance 1967 (A.C.T.), s.19B

Liquor Ordinance 1975 (A.C.T.), ss. 4, 25, 28, 30, 36, 37, 41, 44, 46, 48, 50, 51(1)(c), 58, 76(3), 76, 80(1)

Liquor Ordinance 1929 (A.C.T.), ss. 35(1), 43

HEARING

CANBERRA
18:9:1987

ORDER

The appeal be allowed.

The decision of the Australian Capital Territory Gaming and Liquor Authority be set aside.

DECISION

This is an appeal by the appellants against the Authority (the Authority) cancelling the off licence issued under the Liquor Ordinance 1975 (the Ordinance) in respect of the premises known as Chapman Shoprite Supermarket, Chapman, in the Australian Capital Territory.

2. By Ordinance No. 116 of 1981 the Authority was given, inter alia, such functions and duties as were immediately before the commencing date of the Ordinance conferred or imposed on the Liquor Licensing Board by the Ordinance (Australian Capital Territory Gaming and Liquor Authority Act 1981, s. 14(2)).

3. The appeal is brought pursuant to s. 76 of the Ordinance which provides, inter alia, that where the Authority has suspended or cancelled a licence the licensee may appeal to this court. Section 76 (3) of the Ordinance provides that the appeal is in the nature of a rehearing. At the commencement of the hearing it was agreed that the appeal should proceed by way of rehearing on the material which was before the Authority and upon which the Authority made its order cancelling the subject licence. That material became known as the record of the proceedings before the Authority and was marked as an exhibit on the hearing of the appeal (Exhibit A).

4. The basic facts were not in dispute. On 3 November 1977 the off licence, No. OFF/165 was transferred to six individual people, which included Peter Iliadis, John Iliadis and Yfigenia Iliadis, three of the present appellants. On 18 November 1980 the licence was transferred from the existing six persons to those three previously named. On 22 March 1986 three offences against s. 80(1) of the Ordinance of selling liquor to a person under the age of 18 years were committed at the subject premises. On 22 September 1986 the appellant Peter Iliadis pleaded guilty and was convicted of an offence against s. 80(1) of the Ordinance in that being the holder of a licence he did supply liquor to a named person under the age of 18 years. A fine of $200 was imposed by the Magistrate's Court, Canberra.

5. On 17 December 1986 the appellant Peter Iliadis again pleaded guilty to two further offences committed on 22 March 1986 that being the holder of a licence he did supply liquor to two named persons under the age of 18 years contrary to s. 80(1) of the Ordinance. He was convicted and fined $200 in each case. Between the commission of the offences and the convictions in respect thereof, namely on 19 June 1986, the subject licence had again been transferred from Peter Iliadis, John Iliadis and Yfigenia Iliadis to the present five appellants.

6. By application dated 9 January 1987 the Registrar of Liquor Licences applied to the Authority for an order cancelling the subject licence pursuant to Division 3, Part V of the Ordinance. The application came on for hearing before the Authority and on 16 April 1987 the Authority made an order cancelling the licence on the ground that the licensee had been convicted of two or more offences against the Ordinance pursuant to s. 51(1)(c) of the Ordinance.

7. The three grounds of appeal relied upon by the appellants were:

(1) that the Authority erred in finding as a fact that

the licensee had been convicted of two or more
offences against the Ordinance;

(2) that the Authority should not have been satisfied
that the offences of which the licensee had been
convicted were of sufficient gravity to justify
the cancellation of his licence; and

(3) that the Authority should have been satisfied that
the three offences against s. 80(1) of the
Ordinance arose out of the same or substantially
the same acts.

8. It was agreed by the parties that if the first ground of appeal was successful it would be unnecessary to embark upon the other two grounds of appeal. The point had been taken on the hearing before the Authority and rejected. Accordingly the hearing to this stage was confined to submissions in relation to the first ground. Shortly put, the submission on behalf of the appellant in relation to the first ground was that although the appellant Peter Iliadis had been convicted of two offences against the Ordinance, he was not the licensee at the relevant time. The licensee, so the argument ran, was at the time of the convictions the five present appellants.

9. It was submitted on behalf of the respondent that it is sufficient for the purposes of the operation of s. 51(1)(c) that one licensee has been convicted of two or more offences against the Ordinance, that Peter Iliadis was a licensee at the relevant time and that in the circumstances the Authority was justified in making an order cancelling the licence. Put another way, it was submitted that s. 51(1)(c) should be construed as if it read "the licensees or any of them has been convicted of two or more offences against this Ordinance".

10. It is necessary to determine the correct construction of s. 51(1) in its legislative context and for these purposes to look at the other provisions of the ordinance.

"Licensee" is defined to mean:

(a) in relation to a licence the holder of the
licence; and

(b) in relation to licensed premises, the holder of
the licence in force in relation to those
premises" (s.4).

11. The Liquor Licensing Board, whose functions were taken over by the Authority, was created by Part II of the Ordinance. Part IV deals with the classes of licences that may be issued under the Ordinance, namely general licences, on licences, off licences and club licences (s.25). An off licence authorises the licensee to sell liquor at any time in sealed containers to persons for consumption away from the licensed premises (s.28). It is to be noted that ss. 29 and 34 contemplate that a club licence is to be held by a club that is a body corporate.

12. After considering an application for a licence the Authority shall either authorise the issue of a licence to the applicant or conduct a hearing in relation to the application (s.30). Where the Authority has authorised the issue of a licence to a person or club the Registrar shall issue the licence to the person or club as the case may be (s.36). A licence comes into force on the day on which it is issued (s.37). A licence may be transferred from the holder for the time being of the licence to another person (s.41).

13. Part V headed "Control of Conduct of Licensees" contains Division 3 - "Cancellation of Licences" and Division 4 - "Procedure", under which the order appealed against was made. All the provisions of the Ordinance which precede Part V refer to an applicant for a licence or to a person in the singular. There is no provision which contemplates a plurality of applicants or licensees. The provisions of Part V, on the other hand, refer to the person or club which has been granted a licence as "a person who holds a licence" (s.44); "a licensee" (s.46); "the holder of a licence" (s.48); "each person in relation to whom an order is sought" cancelling the licence (s.50); "the licensee" (s.51); and "each licensee" (s.58).

14. This juxtaposition of various descriptions of the holder of a licence in the same part of the Ordinance gives rise to difficult questions of construction. It may well be that it was the intention of the legislature to make the various descriptions interchangeable. Even accepting that to be the legislative intent, the difficulty of construing any particular description in the plural pursuant to s.19B of the Interpretation Ordinance 1967 remains.

15. Certain parts of the Ordinance, including Part V, came into force on 1 November 1975 and the remainder of the Ordinance came into force on 5 August 1975. The Ordinance repealed the Liquor Ordinance 1929 and all the amendments made between 1929 and 1975. It is clear that the 1929 Ordinance as amended provided that the various types of licences could be granted to individual persons, being a lessee or occupier other than a partnership, or to a person on behalf of a lessee or occupier, being a lessee or occupier which is a partnership. The types of licences which could be granted to such individual persons included residential hotel licences, restaurant licences, grocer's licences, liquor merchant's licences and community hotel licences. In the case of club licences, the Ordinance provided that they be granted to a person designated by resolution of the committee of the club on behalf of the club. So far as transfers of licences were concerned, the Registrar was authorised to transfer a licence from the holder thereof to a person either on his own behalf or on behalf of a partnership, or to a body corporate approved by the Registar.

16. Section 35(1) of the original Ordinance as amended provided that a body corporate could apply for and be granted a licence, and where two or more persons carried on business in partnership, one of the partners or a person nominated by the partnership could on behalf of the partnership apply for and be granted a licence. The offences created by the original Ordinance attached to "every holder of a licence" (s.43).

17. In my opinion the Ordinance presently in operation has preserved the basic structure of the original Ordinance. The intention of the legislature is that the various types of licences provided for in Part IV of the Ordinance other than club licences are to be granted to individual persons, whether a body corporate or one of a number of partners carrying on business in licensed premises. Pursuant to that legislative scheme the offences created by Part IX of the Ordinance, so far as licensed premises are concerned, can only be committed by "the holder of a licence". Consequently it is not appropriate for licences to issue in the name of a multitude of persons.

18. The licence which is the subject of this appeal and which was cancelled by the Authority was issued to three named persons. It is the very fact that the licence was issued to three named persons that has given rise to the difficulties in this appeal. Section 51(1)(c) does not contemplate the issue of a licence to more than one named person. It refers to "a licensee" who has been convicted of two or more offences. The three persons named in the memorandum of transfer of licence have not been convicted of two or more offences against the Ordinance. Accordingly the factual basis upon which the Authority cancelled the subject licence did not exist. It is no answer that one of the licensees has been convicted of two or more offences against the Ordinance.

19. I uphold the first ground of appeal and find that the Authority erred in finding as a fact that the licensee had been convicted of two or more offences against the Ordinance. I therefore allow the appeal and set aside the decision of the Authority cancelling the subject licence.

20. I shall hear counsel on the question of costs.