Australian Leisure and Hospitality Group Pty Ltd v McLauchlan
[2017] WASC 183
•28 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD -v- McLAUCHLAN [2017] WASC 183
CORAM: TOTTLE J
HEARD: 28 JUNE 2017
DELIVERED : 28 JUNE 2017
FILE NO/S: CIV 1769 of 2017
BETWEEN: AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD
Plaintiff
AND
DARYL McLAUCHLAN
Defendant
Catchwords:
Practice and procedure - Interlocutory applications - Application for stay - Where plaintiff seeks a stay of their own proceedings before the Liquor Commission of Western Australia - Where plaintiff has brought judicial review proceedings in this court relating to proceedings before the Commission - Where stay application more appropriately framed as an application for interlocutory injunction - Where balance of convenience favours grant of injunction
Legislation:
Liquor Control Act 1988 (WA), s 24, s 33, s 62
Result:
Interlocutory injunction granted
Category: B
Representation:
Counsel:
Plaintiff: Mr M N Solomon SC & Mr A K Sharpe
Defendant: Mr B D Nelson
Solicitors:
Plaintiff: Squire Patton Boggs
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Minister for Local Government v South Sydney City Council (No 3) [2002] NSWCA 327
Stampalia v Stewarts of the Western Australian Trotting Association [1999] WASC 7
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Zucal, RWWA Chairman of Stewarts v Harper [2005] WASCA 76; (2005) 29 WAR 563
TOTTLE J:
(This judgment was delivered extemporaneously on 28 June 2017 and has been edited from the transcript.)
Introduction
By a chamber summons filed on 6 June 2017 the applicant has applied for orders that:
(i)the Liquor Commission of Western Australia ('the Commission') be added as the Second Other Party to these proceedings; and
(ii)the proceedings before the Commission numbered L30/01/362, being an application by the applicant for the alteration or redefinition of the liquor licence for its premises at 441 Chapman Road Geraldton known as the Wintersun Hotel (the Wintersun application) be stayed pending the determination of the present proceedings.
The applicant supported the application with an affidavit sworn on 6 June 2017 by Ms Shelley Davies, the applicant's solicitor.
The application has been served on the Commission. The respondent has filed a notice of intention to abide the outcome in these proceedings.
The Other Party has not filed a memorandum of appearance and has played no part in the proceedings.
Mr Nelson appeared at the hearing of the application and, on instructions from the State Solicitor's Office, confirmed the Commission had been served with the present application. Mr Nelson informed me that the State Solicitor's Office is awaiting instructions from the Attorney General as to whether to intervene in the substantive application given that there is presently no contradictor.
Background
The applicant has applied for judicial review of a decision of the respondent, a delegate of the Director of Liquor Licensing, to vary the conditions of a licence to operate a large format liquor store in Geraldton held by the Other Party.
The Other Party's licence was granted to it by the Commission on 14 June 2016. More precisely, the Commission made a conditional grant of a liquor store licence to the Other Party for a proposed large format liquor store at lot 86 Utakarra Road, to be known as 'Con's Liquor Geraldton', pursuant to s 62(2) of the Liquor Control Act 1988 (WA) (the Act).
The relevant conditions that were varied by the respondent were conditions imposed pursuant to s 62(4)(b) and s 62(4)(c) of the Act to the effect that:
(i)all work for the construction of the liquor store be completed within 12 months in accordance with plans and specifications dated 4 March 2015; and
(ii)the Other Party seek confirmation of the grant on or before 14 June 2016 pursuant to s 62(4) of the Act.
The respondent varied the first condition by extending the time for the completion of the premises to on or before 31 December 2018.
The applicant's interest in this decision is that the Wintersun application seeks permission to upgrade Wintersun Hotel and convert the existing BWS liquor store into a Dan Murphy's liquor store, a large format liquor store. The Other Party objected to the Wintersun application initially on the ground that it had an application for the grant of a liquor store licence pending before the Commission. Following the conditional grant of the liquor store licence to it, the Other Party based its objection upon the proposition that it had now received a grant of a liquor store licence permitting the operation of a large format liquor store and that there was no evidence to suggest that the Greater Geraldton Region could or would have a consumer requirement for two large format liquor store outlets.
The Director of Liquor Licensing referred the Wintersun application to the Commission for determination. The hearing of the application began before the Commission on 9 November 2016 but was adjourned on the same day without fixing a date for the resumption of the hearing.
The applicant made enquiries to ascertain the details of the conditions imposed on the Other Party's liquor store licence. On 15 February 2017 the State's Solicitors Office informed the applicant that the date by which the Other Party was obliged to seek confirmation of the grant of its licence was 14 June 2017. In a practical sense this obliged the Other Party to have completed the construction of Con's Liquor store by that date.
On 17 March 2017 the applicant's solicitors advised the Director of Liquor Licensing and the Commission that the applicant had not commenced construction of the premises for Con's Liquor Store and would therefore be unable to apply for confirmation of its liquor licence by 14 June 2017. By the same letter the applicant applied, amongst other things, to intervene in any proceedings in relation to any application by the Other Party for a variation of the conditions attached to its licence.
On 29 March 2017 the respondent varied the conditions in the manner I have described. (If a holder of a conditionally granted licence fails to apply for confirmation of the grant in accordance with the licence conditions the Director of Liquor Licensing may cancel the licence without notice, pursuant to s 62(10) of the Act.)
On 15 May 2017 the present application for judicial review of the respondent's was filed.
On 19 May 2017 the Executive Officer of the Commission wrote to the applicant's solicitors to inform the applicant that the Commission was in a position to relist the Wintersun application for hearing. In response the applicant requested that the hearing of the application continue to be adjourned pending the outcome of these judicial review proceedings. The Commission refused the applicant's request and proposes to hear the Wintersun application on a date to be fixed. It is unlikely, however, that the hearing will resume until sometime in September 2017.
It is against that background that the applicant applies to this court for a stay of its application in the Commission.
The jurisdiction to grant a stay
The court has power to grant a stay pending the resolution of judicial review proceedings in the exercise of its inherent jurisdiction.[1]
[1] Stampalia v Stewarts of the Western Australian Trotting Association [1999] WASC 7 [9] (Owen J).
The applicable test is whether an applicant has demonstrated that there are special circumstances sufficient to satisfy the court that it is just and reasonable to order a stay so as to preserve the subject matter and integrity of the litigation. Preserving the subject matter of the litigation is to be understood in a very broad sense.[2]
[2] Zucal, RWWA Chairman of Stewarts v Harper [2005] WASCA 76; (2005) 29 WAR 563 [58] (Steytler P, Wheeler & Pullin JJA agreeing).
In Minister for Local Government & Another v South Sydney City Council (No 3),[3] in the context of an application by a party for an order preventing the Minister recommending that a proposal for alteration of alteration of local government boundaries pending an application for special leave to appeal to the High Court, Spigelman CJ observed the principles applicable to the grant of a stay and of an injunction substantially overlap. His Honour referred to the various formulations of the considerations to be taken into account and observed that:[4]
All of these formulations relate to the effect of not granting a stay or an injunction on the rights, obligations or interests of the putative appellant. The effect of the interests or rights or obligations of an appellant will vary across a spectrum. No doubt such variation may explain the different terminology in which the courts have approached the issue…
[3] Minister for Local Government v South Sydney City Council (No 3) [2002] NSWCA 327.
[4] Minister for Local Government v South Sydney City Council (No 3) [14].
The judicial review grounds
The applicant contends that the respondent's decision was invalid because it was infected by jurisdictional error in that:
(a)the proper application of the public interest test in the Act required that both the application for an extension of time by the Other Party and the Wintersun Application be considered together and determined by the same decision‑maker, but the respondent determined the application by the Other Party independently of the Wintersun Application;
(b)the determination of the application for an extension of time by the Other Party prior to the determination of the Wintersun Application is tantamount to giving the Other Party a priority which, on a proper construction of the Act, it does not have; and
(c)the respondent misconstrued the public interest test in the Act by determining the application for an extension of the by the Other Party in the absence of any consideration by the respondent of the Wintersun Application.
A summary of the applicant's submissions
The applicant argues that a stay is necessary to preserve the subject matter of the litigation. It says it is seeking to vindicate its interest in the Wintersun application being determined according to law and ensuring that the application is not defeated by an erroneous construction of the Act that effectively confers a priority right upon the Other Party and permits the Other Party to be granted a significant extension of time without regard to the public interest in having the Wintersun application determined at the same time.
The applicant says that if the hearing of the Wintersun application by the Commission is not stayed it will be deprived of the interest which it seeks to defend by commencing these proceedings, namely its interest in having the Other Party's application and the Wintersun application determined together. The applicant submits that these applications must be considered together and determined by the same decision‑maker in order to ensure the lawful application of the public interest test which governs both applications. In this respect the applicant points to the fact that the public interest is to be taken into account in any application to vary the condition of the Other Party's licence pursuant to s 33(1) of the Act and that, pursuant to s 38(1) of the Act, it must satisfy the Commission that granting the Wintersun application is in the public interest.
The applicant says that if the present judicial review application is successful, and the decision of the delegate of the director is quashed, then the Director has the power to refer the application for a variation in the Other Party's licence conditions to the Liquor Commission under s 24 of the Act. The applicant argues that if its application is successful it would be very unlikely that the respondent would not refer the Other Party's application to the Commission.
The applicant submits that this application can be distinguished from the more usual stay application which, if granted, results in a party being deprived of the benefits of a judgment in its favour pending the outcome of an appeal or judicial review application. In this case granting a stay or an injunction will not result in another party being deprived of the benefit of the relief to which it is entitled. The applicant submits that no one is prejudiced if the Wintersun proceedings are stayed.
Stay or injunction
Whilst I acknowledge the overlap between the practical application of the principles applicable to stay applications and those applicable to interlocutory injunction applications, I think that this application is more properly to be regarded as an application for an interlocutory injunction. An application for a stay usually arises where the applicant seeks to prevent another party from acting upon or taking the benefit of a decision that is adverse to the applicant. That is not the case here. The applicant is not applying to prevent the Other Party from acting upon the respondent's decision that is the subject of the review application, but to prevent its own application proceeding to a final hearing until the review application is determined. To characterise the application as a stay application involves stretching the concept of a stay to an impermissible extent.
If, as I consider it should, the application must be determined on the basis that it is, in substance, an application for an interlocutory injunction the question arises: what is the source of the court's power to grant such an injunction? The power is found in s 25(9) of the Supreme Court Act 1935 (WA). The recognised principle upon which the power may be exercised is that an injunction is necessary to preserve the subject matter of the judicial review application.[5]
[5] See Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, 2017) 988 [16.40].
I turn now to whether the applicant has made out a case for the grant of an interlocutory injunction by reference to the principles that apply to such applications. [6]
[6] In doing so I apply the well‑known principles applying to the interlocutory injunction applications set out in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [12] (Beech J).
Has the applicant demonstrated that there is a serious question to be tried?
I am not persuaded that the applicant has a strong case but I am satisfied that it has raised a serious question to be determined by the court as to whether the respondent made a jurisdictional error in making his decision.
Whilst it seems to me that there may be arguments to the contrary, I think it is at least arguable that there was sufficient overlap in the public interest considerations that applied to the application to vary the conditions of the Other Party's licence and those that applied to the Wintersun application, to sustain the conclusion that the Act required the applications to have been considered and determined together.
It is, however, where the balance of convenience lies that is the decisive factor in the determination of this application.
Does the balance of convenience favour the grant of an injunction?
The balance of convenience strongly favours the grant of an injunction. Although the facts of this case do not fall within what might conventionally be considered to be a case calling for the court's intervention in order to preserve the subject matter of the dispute (for example, cases which involve the disposition of property or the removal of a person's livelihood), in a real sense if the Wintersun application is heard and determined before the judicial review application is determined, and if that judicial review application is ultimately successful, the applicant's right to have its application determined in accordance with the law will have been irreparably prejudiced.
In such circumstances the Wintersun application would be determined on an assessment of the public interest that took into account the conditional grant of the licence to the Other Party on the basis that the Other Party had complied with the conditions, which would not be the case if the respondent's decision to vary the conditions was set aside. In those circumstances the prospects of the Wintersun application being successful would be reduced to a significant extent and the applicant's commercial interests prejudiced.
The strength of the applicant's case and the balance of convenience are inter-related considerations. The grant of an injunction involves balancing the risk of the injustice which might be suffered by other parties if an injunction is granted and the applicant fails in its substantive proceeding against the injustice which might be suffered by an applicant if the injunction is not granted and it succeeds at the final hearing.
I acknowledge there is a public interest in having proceedings before courts and tribunals resolved without undue delay. This is a factor that weighs against the grant of an injunction. That said, I do not think that the enjoining the Commission from hearing and determining the Wintersun application until the outcome of the judicial review proceedings will cause any significant delay or that anyone will suffer any prejudice in a practical sense if the Wintersun application is delayed. The earliest that the Wintersun application can be heard is sometime in September 2017. The judicial review application can be heard in October 2017.
It is not apparent to me that the grant of an injunction restraining the Commission from proceeding with the Wintersun application will cause prejudice to any third party.
Against that background in my assessment the risk of an injustice being suffered by the applicant is significant and notwithstanding the reservations I have expressed about the strength of the applicant's case, the balance of convenience favours the grant of an injunction.
In the context of this application the question of whether damages would provide the applicant with an adequate remedy does not arise.
I will make an order joining the Commission to these proceedings.
The applicant has offered an undertaking as to damages and I will direct the applicant to file and serve such an undertaking.
I will hear the applicant as to the precise form of orders that are required to give effect to these reasons, if indeed any order in the nature of an injunction is required once these reasons are brought to the attention of the Commission.
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