Canberra Royals Rugby Football Club Incorporated v ACT Gaming and Liquor Authority and Paul M Luff [1990] ACTSC 24 (2 July 1990)

SUPREME COURT OF THE ACT

CANBERRA ROYALS RUGBY FOOTBALL CLUB INCORPORATED v. ACT GAMING AND LIQUOR
AUTHORITY AND PAUL M. LUFF
S.C. No. 1366 of 1988
Declaratory Decrees, Judgments and Orders - Originating Summons

COURT

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

CATCHWORDS

Declaratory Decrees, Judgments and Orders - Originating Summons, declaration on (ACT).

Originating Summons - Supreme Court practice - declaration on (ACT).

Freeman v. Trimble (1906) 6 NSWSR 133 at 139-140

Reynolds v. Reynolds (1941) VLR 249

Morton v. Hampson (1962) VR 364

Twist v. The Council of the Municipality of Randwick [1976] HCA 58; (1976) 136 CLR 106

HEARING

CANBERRA
2:7:1990

Counsel for the plaintiff: Mr J. Purnell

Solicitors for the plaintiff: Peter Smyth Burnett and Co.

Counsel for the defendants: Mr S.W. Gibb

Solicitors for the defendants: ACT Government Solicitor

ORDER

The originating summons be dismissed.

The plaintiff pay the defendants' costs.

DECISION

The plaintiff proceeds by way of originating summons dated 21 October 1988 seeking a declaration that a direction issued to it by the first defendant, the ACT Gaming and Liquor Authority (the Authority), dated 18 May 1987 is invalid.

2. The plaintiff is the licensee under the Liquor Act 1975 of club premises at Weston. The Authority conducted a hearing into complaints about noise from the club premises. On 14 May 1987, following the hearing of evidence, the Authority handed down a decision recorded in writing, purporting to be pursuant to sub-s.46(1) of the Act. The relevant portion of the decision was in the following terms:
"The Authority therefore directs the licensee, Canberra

Royals Rugby Football Club Inc., from this date it shall
cease to conduct the premises in such a manner as to
cause undue disturbance or inconvenience to persons
residing in the neighbourhood of the premises."

3. The direction embodied in the decision of 14 May 1987 was subsequently embodied also in a written instrument which was drawn up in more formal language, and dated 18 May 1987. It was under the hand of the second defendant (the Registrar). It included the following:

"TAKE NOTICE that the Australian Capital Territory Gaming
and Liquor Authority HEREBY DIRECTS you as of 14 May
1987, pursuant to paragraph 46(1)(c) of the Liquor
Ordinance 1975 to cease conducting your licensed premises
in such a manner as to cause undue disturbance or
inconvenience to persons residing in the neighbourhood of
the premises.
AND FURTHER NOTE should you contravene this direction the
Authority may cancel your licence
pursuant to paragraph 51(1)(d) of the Liquor Ordinance
1975."

4. Proceedings were subsequently commenced by the Registrar for the cancellation of the plaintiff's licence. The application came before the senior member of the Authority. Counsel for the plaintiff raised as a preliminary point the validity of the direction given on 18 May 1987. The senior member rejected the submissions of the plaintiff's counsel and directed that a date for the resumed hearing should be set.

5. The more relevant provisions of the Act are as follows:
"46.(1) Where -

.....
(c) a licensee has permitted his licensed premises to
be so used as to cause undue disturbance or
inconvenience to persons residing in the
neighbourhood of the premises;
.....
the Authority may, by order, give to the licensee such
directions as it thinks necessary.
(2) Where the Authority gives directions to a
licensee under sub-section (1), it shall, by its
directions, specify a period within which the licensee is
to comply with the directions.
51.(1) The Authority may, by order, cancel a licence
where -
.....
(d) the licensee has contravened or failed to comply
with a direction given to him by the Authority.
76.(1) Where the Authority -
(a) has refused to authorize the issue of a licence or
approve the transfer of a licence;
(b) has refused to direct the issue of a permit;
(c) has directed the issue of a permit subject to
conditions;
(d) has given directions to a licensee;
(e) has suspended or cancelled a licence;
(f) has cancelled a permit;
(g) has refused to approve an alteration of licensed
premises;
(h) has directed the issue of a permit in terms
different from those sought by the applicant;
(i) has refused to approve the closure of licensed
premises;
(j) has refused to make a declaration under sub-
section 99(12); or
(k) has refused to grant leave for the purpose of
sub-section 101A(8) or 101A(11).
the applicant or licensee as the case may be, may, within
21 days after the decision of the Authority was given,
appeal to the Supreme Court.
(2) Jurisdiction to hear and determine appeals under
this section is vested in the Supreme Court.
(3) An appeal is in the nature of a re-hearing.
(4) The Registrar shall be the respondent on an
appeal.
(5) The Supreme Court may -
(a) affirm, set aside or vary the decision of the
Authority; and
(b) make such other order as justice requires.
(6) Where the Supreme Court sets aside or varies a
decision of the Authority, the Court shall set out in its
decision the reason for the decision."

6. The substantial point taken on behalf of the plaintiff is that the direction of the Authority given on 14 May 1987 is invalid because it failed to comply with sub-s.46(2) in that it did not "specify a period within which the licensee is to comply with the directions". The learned senior member of the Authority in his reasons for decision expressed the opinion that it was intended by the Authority on 14 May 1987 to direct compliance with its direction forthwith, that it was open to the Authority to so direct and that the terms of the direction required compliance forthwith. The word "forthwith" is one of somewhat elastic meaning according to the context (see Freeman v. Trimble (1906) 6 NSWSR 133 at 139-140). However, in my view, it is not necessary to decide whether or not the direction of 14 May 1987 required compliance forthwith. The question is whether the direction did "specify a period within which" compliance was required pursuant to sub-s.46(2).

7. In Reynolds v. Reynolds (1941) VLR 249, O'Brien J. said the word "within" in relation to a period of time does not usually mean "during" or "throughout the whole of"; it is more frequently used to delimit a period "inside which" certain events may happen.

8. In Morton v. Hampson (1962) VR 364, a Full Court of the Supreme Court of Victoria said at p 365:

"The modern rule in relation to a period of time fixed by
statute 'within' which an act is to be done after a
specified event is that the day of the event is to be
excluded; the next day is the first
day of the stipulated period and the time expires on the
last day of the period, counting from and of course
including the first day."

9. The direction handed down on 14 May 1987 was a direction to the plaintiff that "from this date it shall" cease to carry out the proscribed conduct. The direction specified a period of one day, 14 May 1987 itself, during which the plaintiff was to comply with it. The plaintiff had until midnight on that date to comply with the direction. The phrase "from this date", in my view, specifies a period within which the plaintiff was required to comply with the direction in accordance with sub-s.46(2) of the Act.

10. The document that was drawn up and bore date 18 May 1987 does not assist to clarify the point but, in my view, it does not destroy the validity of the direction given on 14 May 1987. The reference in the document of 18 May 1987 requiring compliance "as of 14 May 1987" is consistent with the direction given on the earlier date at the time the decision was handed down.

11. It was argued on behalf of the Authority that even if the direction of 14 May 1987 was invalid, then the Court could not or should not make the declaration sought. It is necessary to deal only briefly with those submissions. It was put in the first instance that as s.76 of the Act conferred on the plaintiff a right to an appeal by way of rehearing, then the plaintiff was not entitled to seek a declaration. Reliance was placed upon the decision of the majority of the High Court in Twist v. The Council of the Municipality of Randwick [1976] HCA 58; (1976) 136 CLR 106. That was a case concerned with provisions of the Local Government Act 1919 (NSW) which empowered a council to order the demolition of a building. The owner was entitled to appeal to the District Court against the making of a demolition order. The appeal was by way of rehearing. The owner of the building was absent when the council made the order and was out of time to appeal to the District Court. He sought a declaration in the Supreme Court of New South Wales that the demolition order was void because it had been made in breach of the rules of natural justice. Barwick C.J. and Mason J. (as he then was) held that the terms of the Local Government Act 1919 and more particularly the nature of the right of appeal indicated an intention on the part of the legislature that an owner did not have a right to be heard by the council before the council made an order for demolition. Jacobs J., on the other hand, considered that the existence of a right to appeal did not exclude a right to be heard before the making of a demolition order.

12. In Twist's case Barwick C.J. said at p 111:

"However, each statutory provision must be considered in
the light of the principles to which I have referred.
There is no rule which can provide in every case an
answer by its mechanical application. The mere existence
of an appeal may not in some circumstances satisfy the
requirements of natural justice."

13. In his dissenting judgment, Jacobs J. said at p 119:

"I do not think that it would at all accord with the
legislative intention that an owner should be
able to ignore rights of appeal of the kind given by
sub-s.(5) and instead rely on an absolute invalidity in
the order which a council had made. A different view
might be open if the appeal were to anything less than a
court of the wide jurisdiction and consequent legal
standing possessed by the District Court; but in my
opinion it was not the legislative intention that an
order under the section, subject to appeal to the
District Court, should, without any resort to the right
of appeal, be able to be treated for all purposes as void
and of no effect upon the ground that the principle of
natural justice had not been observed."

14. Twist's case is analogous to the present case, but not on all fours. In the present case no question arises about the right to be heard before a direction may be given by the Authority pursuant to s.46(1) of the Act. The substantial question is simply one of statutory construction, namely whether the direction given was one which was in accordance with sub-s.46(2). The threshold question is whether the right to appeal against any such direction excludes the right to seek a declaration that the direction is invalid. In my view, the provisions of s.76 of the Act which confer a wide power and responsibility on the Supreme Court to come to its own view as to the facts and to decide for itself whether or not the direction given by the Authority should be affirmed, set aside or varied, or whether some such other order should be made, shows an intention on the part of the legislature that the appeal is the only way in which a direction of the Authority may be attacked on the merits. It may be otherwise when the Authority acts without jurisdiction or outside the powers conferred upon it and where there is otherwise ground for the relief in the nature of the issue of a prerogative writ: I would expect that the same principle would apply where the relief sought is a declaration. However, it is not necessary to decide the point. I also leave out of account any consideration of whether a decision of the Authority is subject to the Administrative Decisions (Judicial Review) Act 1989 (ACT). That question was not touched upon in argument.

15. In any event, there is the remaining matter of discretion. It is now more than three years since the time elapsed for the appeal to be brought in this Court pursuant to s.76. There is no explanation for the plaintiff's failure to appeal against the direction. There is some explanation for the slow progress of events since that time, but it would be quite inappropriate, in my view, for this Court at this stage to allow the process of a declaration to be used to resurrect the situation as it was in 1987.

16. The originating summons is dismissed. The plaintiff is to pay the defendants' costs.