Subject to section 25 of the Liquor Control Act 1988, a person who is dissatisfied with a decision of the Director of Liquor Licensing may apply to the Liquor Commission for a review of that decision. An application for a review must be made within a month of the original decision (or such longer period as the Commission may allow).
Steps for lodging an application for review with the Liquor Commission (“the Commission”)
- Read this overview carefully
- Fill in the application form
- Lodge the application with the Commission
- Pay any required fee
- Serve a copy of the review application on all persons who were a party to the proceeding before the Director of Liquor Licensing
(Refer to Rule 5 of the Liquor Commission Rules 2007 - Western Australian Legislation - Liquor Commission Rules 2007 - Home Page)
What happens after the application is lodged with the Commission?
Once the Commission receives your application, all parties to the proceedings (i.e. any person who was a party to the proceedings before the Director of Liquor Licensing) will be notified whether:
- a directions hearing is necessary;
- a hearing to determine the substantive application has been scheduled; or
- the Commission will be making its decision based on written submissions of the parties without the need for a hearing.
A directions hearing, if required, is usually held on the earliest available dates of the parties to determine preliminary matters before the final hearing. All parties to the proceeding are informed of the date, time and hearing room number.
At the directions hearing, directions may be given on the management of the progress of the matter, and lodgment of submissions.
What is the time taken to hear an application before the Commission?
Although the Commission endeavours to hear applications as expeditiously as possible, the hearings are scheduled depending on the availability of the Commissioners and all the parties to the proceeding. Generally a matter is heard and determined within 8-10 weeks from the date of lodgment of the review application.
Any person involved in a hearing may be represented by a lawyer or other relevant person (see below).
Are grounds of Review required to be provided at the lodgment of the review application?
The Commission is a review body. Pursuant to section 16 of the Act, it is required to act without undue formality. The Act does not require applicants to lodge grounds for any review sought. However, the Commission considers that it is in the interests of the applicant to do so in order to direct the Commission’s attention to those areas which have given rise to the applicant’s dissatisfaction with the decision of the Director of Liquor Licensing.
In view of the review function of the Commission, it is neither necessary nor desirable to assert an error by the Director. The Commission is required to review only that material that was before the Director in arriving at their decision and is then required to decide on the basis of this material, whether a different decision should, in its opinion, have been reached.
Who can represent the parties to the proceeding before the Commission?
Parties may choose to be represented either:
- personally; or
- by a Legal Practitioner ; or
- by a person with specialist knowledge or expertise relevant to the proceedings and approved by the licensing authority.
Section 17 of the Liquor Control Act 1988 provides as follows:
- A party to proceedings being determined by the licensing authority may appear —
- by counsel;
- if the party is a member of an association which the licensing authority recognises as having been formed to promote or protect the interests of a section of the liquor industry, or of employees in the liquor industry — by an officer or employee of that association;
- if the party is a body corporate — by an officer or employee of the body corporate who has obtained leave of the licensing authority to appear on its behalf; or
- by any other person approved by the licensing authority.
- The Commissioner of Police may be represented before the licensing authority by a member of the Police Force, and where a member of the Police Force purports in any proceedings to represent the Commissioner of Police that person shall be deemed, in the absence of proof to the contrary, to have been authorised by the Commissioner of Police so to do.
[Section 17 amended by No. 12 of 1998 s. 12.]
What is the process for lodging written submissions prior to a hearing?
Before the Final / Directions hearing, the parties will usually be afforded an opportunity to lodge written submissions relevant to the grounds for review sought in the review application.
Ordinarily these submissions are required to be lodged 2 weeks prior to the hearing. Parties to the proceeding are thereafter afforded 7 days to lodge their responsive submissions.
For example: If a hearing is listed to be heard on 15 January 2009, the parties to the proceeding will be required to lodge their submissions by close of business 1 January 2009. Responsive submissions will be required to be submitted by close of business 8 January 2009. No further submissions will be accepted for lodgment a week prior to the hearing.
The commission expects submission deadlines to be met, in the interests of fairness to all parties to the matter and in order for the Commission to discharge its responsibilities under section 16 of the Act properly. The Commission has discretion in deciding whether to accept late submissions.
What is the process to access the documents before the Commission in a hearing?
Section 25(2c) of the Liquor Control Act 1988 (“the Act”) provides that when conducting a review of the decision made by the Director of Liquor Licensing, the Commission may have regard only to the material that was before the Director when making the decision. At the time of referring this material to the Commission, the Director approves all the material he had regard to at the time of making his determination. It is therefore not the Commission’s responsibility to ensure that all the material that was before the Director was actually made available to the parties to the proceeding when the matter was being considered by him.
However, in accordance with the provisions of section 16(11) of the Act, the Commission seeks to ensure that each party to a proceeding before it is given a reasonable opportunity to present its case and, in particular, to inspect any documents to which it proposes to have regard in making a determination in the proceedings and to make submissions in relation to those documents. The Commission in doing so has regard to Rule 14 of the Liquor Commission Rules 2007 (“the Rules”) which provides-
14. Commission’s records, access to
- In this rule — electronic recording means any electronic or magnetic recording of sounds or moving images or both.
- This rule is subject to any other written law that relates to the possession or publication of documents and other records or to the possession of any thing.
- A party is entitled, on request, to inspect and obtain a copy of any of the following documents lodged with the Commission that relate to the proceedings —
- an application under the Act;
- a plan lodged in relation to an application under the Act;
- a certificate under section 39 or 40 of the Act;
- an application under section 46 of the Act;
- submission to the Commission relating to public interest;
- the constitution and rules of a club;
- a notice of objection under the Act.
- A party is not entitled to inspect or obtain a copy of the any other document lodged with the Commission.
- With the leave of the Commission, a party may listen to or view, and obtain a written transcript of —
- any electronic recording tendered to the Commission in the proceedings; or
- any electronic recording of the relevant proceedings.
Further, Schedule 1 of the Rules provide for a charge of $5.00 per page for the supply of a document or transcript of an electronic recording under Rule 14.
How are the hearings conducted?
In the majority of cases, a Liquor Commission hearing is held at the offices of the Department of Racing, Gaming and Liquor. It is recommended that all parties intending to be present at the hearing arrive no less than 15 minutes prior to the commencement of the hearing. Upon commencement of the hearing, the applicant will be invited to present oral submissions. All other parties are then given an opportunity to make submissions in response. The applicant is then afforded the opportunity to reply to these submissions. In accordance with section 16(1)(a) of the Act, the Commission is required to act without undue formality. At the hearing, the Commissioner’s may interject or ask questions during the delivery of submissions, or may seek clarification from another party to the proceedings.
The Commission hearing room is equipped with audio/visual facilities, however parties to the proceedings should contact the Commission at least one week prior the hearing should they wish to use any of the equipment. This allows the Commission to ensure that the equipment is in working order prior to the hearing.
How are matters before the Commission determined?
At the end of the final hearing, the Commission will deliberate on the submissions made in the matter.
The decision may be handed down immediately following the hearing or the Commission may reserve its decision, to be delivered at a later stage, but usually within three months.
The Commission gives reasons for all its final decision.