The Licensing Court

LIQUOR LICENSING > THE LICENSING COURT


This section defines the different responsibilities of the Liquor & Gambling Commissioner and the Licensing Court. It also contains information on protocol for appearing before the Commissioner or a Judge.

Division of responsibilities

The powers and responsibilities of the licensing authority are divided between the Liquor and Gambling Commissioner and the Licensing Court.

The Commissioner is to determine:

  • all non‑contested matters
  • all contested applications for a limited licence or where the parties choose the Commissioner to determine an application.

If an application is contested the Commissioner must:

  • if the differences between the parties are resolved by conciliation, the Commissioner must determine the matter so as to reflect the agreement reached by conciliation; and
  • if the differences between the parties are not resolved by conciliation:
    • if the dispute arises on an application for a limited licence – the Commissioner must determine the application
    • if the dispute arises on an application (other than a limited licence) and the parties request the Commissioner to determine the application – the Commissioner must determine the application
    • in any other case the Commissioner must refer the matter for hearing and determination by the Court.

Power of Commissioner to refer questions to the Court.

The Commissioner may refer for hearing and determination by the Court:

  • any proceedings that involve questions of substantial public importance; or
  • any question of law that arises in proceedings before the Commissioner; or
  • any other matter that should, in the public interest or in the interests of a party to the proceedings, be heard and determined by the Court.

The Court must determine

  • all matters referred for hearing and determination by the Commissioner; and
  • all other matters that are, under some other provision of this Act, to be determined by the Court.

In proceedings under the Liquor Licensing Act 1997, the Commissioner:

  • must act without undue formality; and
  • is not bound by the rules of evidence but may inform himself or herself on any matter as the Commissioner thinks fit.

Powers of the Commissioner with respect to witnesses and evidence

The Commissioner may exercise the following powers:

  • by summons, require any person to attend before the Commissioner at a time and place specified in the summons for the purpose of giving evidence relevant to proceedings before the Commissioner;
  • by summons, require the production of records;
  • inspect records, and take copies of, or extracts from, them;
  • require any person to take an oath or affirmation verifying evidence given, or to be given, before the Commissioner;
  • require any person appearing before the Commissioner to answer a question put by the Commissioner or some other person.

A person is guilty of an offence (maximum penalty $2500) if:

  • having been served with a summons to attend before the Commissioner fails, without reasonable excuse, to attend in obedience to the summons; or
  • having been served with a summons to produce records fails, without reasonable excuse, to comply with the summons; or
  • they refuse to be sworn or to affirm, or to answer a relevant question when required to do so by the Commissioner,

Representation

A party to proceedings before the Commissioner may appear in those proceedings

  • personally; or
  • by counsel; or
  • if the party is a member of a genuine association formed to promote or protect the interests of a section of the liquor industry, or employees in the liquor industry by an officer or employee of that association; or
  • if the party is a trust or corporate entity by an officer or employee of the entity; or
  • by leave of the Commissioner by any other person.The Commissioner of Police may be represented in proceedings before the Commissioner by a police officer.

Application for a Review of Commissioner’s Decision

A party to proceedings before the Commissioner who is dissatisfied with a decision made by the Commissioner in the proceedings may apply to the Court for a review of the Commissioner’s decision.

However, if the Commissioner’s decision relates to a subject on which the Commissioner has absolute discretion, then it is not reviewable by the Court.

Applying for a review of the Commissioner’s decision

An application for review of a decision of the Commissioner must be made within one month after the party receives notice of the Commissioner’s decision. A longer period may be allowed by the Court on application.

On review, the Court may exercise any one or more of the following powers:

  • affirm, vary or quash the decision subject to the review
  • make any decision that should, in the opinion of the Court, have been made in the first instance
  • refer a matter back to the Commissioner for rehearing or reconsideration
  • make any incidental or ancillary order.

In proceedings before the Court, the Court shall apply the Licensing Court Rules 2012. All initiating documents and other Court documents are in the form, prescribed by the Rules and can be accessed on the Licensing Court website: .

Representation

A party with proceedings before the Court may appear in the proceedings:

  • personally; or
  • by counsel; or
  • if the party is a member of a genuine association formed to promote or protect the interests of a particular section of the liquor industry, or employees in the liquor industry by an officer or employee of that association; or
  • if the party is a trust or corporate entity, then by an officer or employee of that entity; or
  • by leave of the Court by any other person.

The Commissioner of Police may be represented in proceedings before the Court by a police officer.

Penalties

A person is guilty of an offence (maximum penalty $2500) if:

  • having been served with a summons to attend before the Court fails, without reasonable excuse, to attend in obedience to the summons; or
  • having been served with a summons to produce records fails, without reasonable excuse, to comply with the summons; or
  • they refuse to be sworn or to affirm, or to answer a relevant question when required to do so by the Court

Power to Award Costs

If, in the opinion of the Court a person as acted unreasonably, frivolously or vexatiously in bringing proceedings or in relation to the conduct of proceedings before the Court, the Court may award costs against them.

Injunctions

If there are grounds to believe a person is about to contravene or fail to comply with the Act or a condition of a licence, the Court can order a person to refrain from the contravention or non compliance.

If a person fails to comply with such an order commits a contempt of Court (maximum penalty $10 000 or imprisonment maximum term six (6) months).

Appeal from Orders and Decisions of the Court

Appeals to the Supreme Court

A party with proceedings before the Court may, by leave of the Supreme Court, appeal against any order or decision of the Court.

However, no appeal lies against:

  • an order or decision of the Court made on a review of a decision of the Commissioner; or
  • an order or decision of the Court excluded from appeal under a provision of this or some other Act.

An appeal must be commenced within the time, and in accordance with the procedure, prescribed by rules of the Supreme Court.

An appeal under this section must be heard and determined by the Full Court.

On an appeal, the Supreme Court may:

  • affirm, vary or quash the order or decision subject to the appeal;
  • make any order or decision that should, in the opinion of the Supreme Court, have been made in the first instance;
  • remit the subject matter of the appeal for further hearing by the Court;
  • make any incidental or ancillary order.

Court procedures

In some cases, people appearing before the Licensing Court may not be familiar with the procedures or code of behaviour. The following information is offered to act as a general guide to those people attending the Court.

If a person attending the Court has any questions, they can contact the Clerk of the Court prior to the hearing commencing on (08) 8207 0954.

General information

  • The Judge of the Court is addressed as ‘Your Honour’.
  • Counsel is not required to ‘robe’.

Court times

The Court usually commences at 10 am and adjourns at approximately 1 pm for lunch. Court then resumes at 2.15 pm and concludes at approximately 4.30 pm.

Prior to the hearing

  • Before the hearing begins, the Judge’s Associate will advise who will be hearing the matter.
  • All parties associated with an application must arrive at least 15 minutes prior to the hearing time and wait to be called into the Court Room by the Judge’s Associate.
  • All mobile phones are required to be switched off prior to entering the Court Room.

Upon commencement of a court hearing

  • The Judge’s Assistant will enter followed by the Judge. The Judge’s Associate will require all persons to stand in the Court Room at this time.
  • Once the Judge has taken his/her seat, all persons are required to do the same.

During a court hearing

  • During the hearing, evidence may be taped or taken down by a court reporter.
    If the evidence is being taped, please speak clearly into the microphone placed in front of you. Please make sure that whilst speaking there is no other obstruction between you and the microphone.
  • If a person is being called as a witness, they must always stand in the witness box prior to being sworn in. The Judge’s Associate will require that person to place their right hand on the Bible whilst being sworn in. If a person wishes to make an oath, but not on the Bible, please contact the Court in advance to discuss if this can be arranged. An affirmation is available where a person doesn’t wish to make an oath. You may then sit down in the witness box while questions are directed at you.
  • If a person does not have legal representation during the hearing and they are being spoken to by His Honour, then that person is required to stand at all times.
  • All exhibits to be tendered must be handed to the Judge’s Associate and not the Judge unless otherwise instructed.
  • If a person arrives at the Court Room after a hearing has commenced, then that person, when entering the Court Room, is required to acknowledge His Honour by bowing to him and then quietly locating a seat in the Court Room.
  • If a person needs to leave the Court Room whilst a hearing is in session, they may do so, bowing to the Judge at the door prior to leaving.

Leaving the hearing room

Upon leaving the Bench, the Judge’s Associate will require all persons to stand. The Court will then either adjourn to a date to be fixed or be adjourned to another time/date.