PARTIES:

TITLE OF COURT:

JURISDICTION: FILE NO.: DELIVERED: REASONS OF: CATCHWORDS:

Tennant Creek Trading Pty Ltd and Ors v The Liquor Commission of the Northern Territory

In the Supreme Court of the Northern Territory of Australia
Interlocutory Application 119 of 1994
15 September 1994 Master Coulehan

Practice & procedure - O.9.06(b) - addition of  a party - whether party ought to have been joined or is a necessary party - a question arising out of a claim in the proceeding - whether just and convenient - natural justice
Cases referred to:
Pralle v Scharka (1978) 2 NSWLR 450
United	states	Tobacco	Co.	v	Minister	for Consumer Affairs & Ors (1938) 20 FCR 520
The Queen v Australian Broadcasting Tribunal ex parte Hardiman 144 CLR 13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN
119 of 1994	BETWEEN:
TENNANT CREEK TRADING PTY LTD
and ORS
Plaintiffs
and
THE LIQUOR COMMISSION OF THE NORTHERN TERRITORY
Defendant MASTER COULEHAN: REASONS FOR DECISION
(Delivered 15 September 1994)

Julalikari Council Aboriginal Corporation ("the Council") applies to be added as a defendant in this proceeding in which the plaintiffs seek orders quashing decisions of the Liquor Commission of the Northern Territory ("the Commission") made on 8 June and 2 August 1994.

The relevant facts are set out in the plaintiffs' statement of claim.

On 8 June 1994 the Commission decided to vary the conditions of the plaintiffs' licences by reducing their hours of trading and prohibiting the sale of certain types of liquor.

The plaintiffs sought a hearing pursuant to s.33(2) of the Liquor Act.

The Council sought leave of the Commission to be legally represented at the hearing, which leave was granted on 2 August 1994.

The reason for the Council's desire to be represented at the hearing is explained in the affidavit of Pamela Mary Ditton sworn on 6 September 1994 in support of this application.

The Council comprises a number of aboriginal communities including aboriginals who are residents of Tennant Creek.  The objects of the Council are to improve the conditions under which aboriginals in the Barkly region live, including the alleviation of the problems of alcohol abuse.

Annexed to the affidavit is a copy of a "Notice of Intent" published by the Commission which appears to relate to the decision to vary the conditions of liquor licences in Tennant Creek.

The notice refers to the "negative health and social effects   caused   by   excessive   consumption    of    alcohol" and announces changes to Tennant Creek's liquor laws for a trial period of 3 months. It also comments on the involvement of the "Julalikari council" and its members who are to be the subject of certain prohibitions relating to the sale of liquor.

Correspondence annexed to the affidavit confirms the Council's support for the measures contained in the notice with certain qualifications.

The Council relies on O.9.06(b) which reads as follows:-
"At	any	stage	of	a	proceeding	the	Court	may order that -

any of the following persons be added as a party:

a  person  who  ought  to  have  been joined as a party or whose  presence before the court is necessary to

ensure that all questions in the proceedings are effectually and completely determined and adjudicated on; or
a person between whom and a party to
the proceeding there may exist a question arising out of, or relating to or connected with, a claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;"

The rule does not stipulate who may apply, however, reference may be made to 0.1.10(2) which provides:­
"The court may exercise a power under this Chapter of its own motion or on the application of a party or of a person who has sufficient interest."

The first part of O.9.06(b)(i) provides a basis for the council to be joined  as a party.  It is a  person who ought to have been joined as a party because its interests would be directly affected by an order quashing the decision to allow it to be legally represented at the hearing. (See Pralle v Scharka (1978) 2 NSWLR 450). Further, the rules of natural justice require that the Council be given an opportunity to be heard on this issue. (See United states Tobacco Company v Minister for Consumer Affairs and ors (1988) 20 FCR 520, 530-531).

O.9.06(b)(ii) also provides a basis for adding the Council as a party. The decision to allow the Council to be legally represented at the hearing is a question between the Council and the plaintiffs which is related to the plaintiffs' claim.

It was asserted on behalf of the plaintiffs that it would not be just and convenient to allow the Council to be joined because of additional delay and costs. The nature and extent of the additional delay and costs was not elucidated.

It was also suggested that it was unnecessary because the Commission would argue the Council's case on its behalf. Counsel appearing for the Commission was unable to confirm that this would be the case.  Indeed, it may not be proper for it to do so. (See The Queen v Australian Broadcasting Tribunal ex parte Hardiman 144 CLR 13, 135).

I am satisfied that it would be just and convenient to add the Council as a defendant.

There will be an order in terms of paragraph one of the Summons filed on 24 August 1994.