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Commissioner of Police v Liquor Commission of Western Australia

Commissioner of Police v Liquor Commission of Western Australia

Case [2019] WASC 165 18 April 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   COMMISSIONER OF POLICE -v- LIQUOR COMMISSION OF WESTERN AUSTRALIA [2019] WASC 165
CORAM:   ARCHER J
HEARD:   18 APRIL 2019
DELIVERED          :   18 APRIL 2019
FILE NO/S:   CIV 1501 of 2019
BETWEEN:   COMMISSIONER OF POLICE
Applicant
AND
LIQUOR COMMISSION OF WESTERN AUSTRALIA
Respondent
DIRECTOR OF LIQUOR LICENSING
First Other Party
CHIEF HEALTH OFFICER
Second Other Party
SUNSEASONS PTY LTD (ACN 070 489 495)
Third Other Party
DELTA POINT HOLDINGS PTY LTD (ACN 009 351 455)
Fourth Other Party
BUSHFALLS PTY LTD (ACN 071 171 821)
Fifth Other Party
SONSAN PTY LTD (ACN 085 132 476)
Sixth Other Party
WALKABOUT HOLDINGS PTY LTD (ACN 616 051 640)
Seventh Other Party
LIQUOR STORES ASSOCIATION OF WESTERN AUSTRALIA INC
Eighth Other Party
AUSTRALIAN HOTELS ASSOCIATION (WESTERN AUSTRALIA)
Ninth Other Party
REGIONAL PROPERTY CUSTODIAN PTY LTD (ACN 626 322 629)
Tenth Other Party
RINGTHANE PTY LTD (ACN 009 372 990)
Eleventh Other Party
MARK CARLSON
Twelfth Other Party
RAMPEARL PTY LTD (ACN 081 413 673)
Thirteenth Other Party
REDSANDS NOMINEES PTY LTD (ACN 153 316 075)
Fourteenth Other Party
RAMINEA PTY LTD (ACN 008 883 994)
Fifteenth Other Party
HAYBAR PTY LTD (ACN 154 717 610)
Sixteenth Other Party
RUM HOLDINGS PTY LTD (ACN 009 289 785)
Seventeenth Other Party
WOOLWORTHS GROUP LIMITED (ACN 000 014 675)
Eighteenth Other Party

Catchwords:

Judicial review - Jurisdictional error - Proper construction of s 26 of the Liquor Control Act 1988 (WA)

Legislation:

Liquor Control Act 1988 (WA)

Result:

Application for judicial review

Category: B

Representation:

Counsel:

Applicant	:	J M Carroll & D E Leigh
Respondent	:	No appearance
First Other Party	:	No appearance
Second Other Party	:	J M Carroll & D E Leigh
Third Other Party	:	No appearance
Fourth Other Party	:	No appearance
Fifth Other Party	:	No appearance
Sixth Other Party	:	No appearance
Seventh Other Party	:	No appearance
Eighth Other Party	:	No appearance
Ninth Other Party	:	No appearance
Tenth Other Party	:	No appearance
Eleventh Other Party	:	No appearance
Twelfth Other Party	:	No appearance
Thirteenth Other Party	:	No appearance
Fourteenth Other Party	:	No appearance
Fifteenth Other Party	:	No appearance
Sixteenth Other Party	:	No appearance
Seventeenth Other Party	:	No appearance
Eighteenth Other Party	:	No appearance

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	No appearance
First Other Party	:	No appearance
Second Other Party	:	State Solicitor's Office
Third Other Party	:	No appearance
Fourth Other Party	:	No appearance
Fifth Other Party	:	No appearance
Sixth Other Party	:	No appearance
Seventh Other Party	:	No appearance
Eighth Other Party	:	No appearance
Ninth Other Party	:	No appearance
Tenth Other Party	:	No appearance
Eleventh Other Party	:	No appearance
Twelfth Other Party	:	No appearance
Thirteenth Other Party	:	No appearance
Fourteenth Other Party	:	No appearance
Fifteenth Other Party	:	No appearance
Sixteenth Other Party	:	No appearance
Seventeenth Other Party	:	No appearance
Eighteenth Other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Commissioner of Police v Liquor Commission of Western Australia [2019] WASC 165
Case: [2019] WASC 165
Decision Date: 18 APRIL 2019

CaseChat Overview and Summary

In this case, the Commissioner of Police challenged a decision by the Liquor Commission of Western Australia in the Federal Circuit Court. The dispute concerned the interpretation of section 26 of the Liquor Control Act 1988 (WA) and the scope of the Liquor Commission's powers under that section. The Commissioner argued that the Liquor Commission had exceeded its jurisdiction by imposing conditions on a liquor licence that were not authorised by the Act. The court was required to determine whether the Liquor Commission's decision involved jurisdictional error.

The central legal issue was whether the Liquor Commission had the authority to impose the conditions in question, and if not, whether the error was sufficient to render the decision invalid. The court had to consider the proper construction of section 26 of the Liquor Control Act, including the preconditions and conditions that the statute requires to be observed in order for the decision-maker to make a decision of that kind. The court also had to determine whether the Liquor Commission's failure to comply with any preconditions or conditions resulted in a jurisdictional error that rendered the decision invalid.

In determining the limits of the Liquor Commission's function and powers, the court followed the principles established by the High Court in Hossain v Minister for Immigration and Border Protection. The court held that determining the extent of non-compliance which will result in jurisdictional error is a question of statutory construction. The court found that the Liquor Commission had not exceeded its jurisdiction under section 26 of the Act, as the conditions imposed were authorised by the Act and did not involve a failure to comply with any preconditions or conditions. The court also found that any non-compliance was not material, as it could not have made a difference to the decision that was made.

The court dismissed the Commissioner's application for judicial review and ordered the Commissioner to pay the Liquor Commission's costs of the proceeding.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As was recently explained by the High Court in Hossain v Minister for Immigration and Border Protection,[2] determining the limits of a decision‑maker's function and powers is a question of statutory construction. [2] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1. First, it is necessary to identify 'the preconditions which the statute requires to exist in order for the decision‑maker to embark on the decision‑making process'. It is also necessary to identify the conditions which the statute requires to be observed in order for the decision‑maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction.[3][3] Hossain [23], [27] (Kiefel CJ, Gageler & Keane JJ). It is ordinarily an implied condition that the decision‑maker proceed by reference to 'correct legal principles, correctly applied'.[4][4] Hossain [29]. Second, if a decision‑maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non‑compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it'. If so, the purported decision will involve 'jurisdictional error'. That is, it will have been made outside jurisdiction. Determining the extent of non‑compliance which will have this result is also a question of statutory construction.[5][5] Hossain [24], [27]. In Hossain, the plurality said:[A] statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non‑compliance.… the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.[6] As was recently said by the Court of Appeal in Mohammadi v Bethune,[7] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'. [7] Mohammadi v Bethune [2018] WASCA 98 [31]. See also all of [31], and [32] ‑ [36]. In the recent decision of Australian Unity Property Limited v City Busselton,[8] the Court of Appeal reiterated the primacy of the legislative text in determining legislative intention. The court emphasised that the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.[8] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85]. The relevant statutory framework was helpfully set out in the applicant's submissions and I gratefully acknowledge that what follows is taken from, or draws from, that summary. Section 64 of the Act empowers the licencing authority to (subject to the Act) impose, vary or cancel conditions 'in relation to any licence'. The licensing authority may also vary or cancel any condition previously imposed.

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Citations

Commissioner of Police v Liquor Commission of Western Australia [2019] WASC 165

Cases Citing This Decision

No citing cases yet.

Cases Cited

Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Citation 1 (Para 3)

…its of a decision‑maker's function and powers is a question of statutory construction. [2] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1.…
Mohammadi v Bethune [2018] WASCA 98
Citation 2 (Para 1)

…e task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'. [7] Mohammadi v Bethune [2018] WASCA 98 [31]. See also all of [31], and [32] ‑ [36].…
Basra v Minister for Immigration and Border Protection [2018] FCA 422
Citation 3 (Para 2)

…er or not he did, it is necessary to consider the statutory scheme.[13] [13] See, for example, Basra v Minister for Immigration and Border Protection [2018] FCA 422 [36].…
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Citation 4 (Para 2)

…utory text, understood in its context and having regard to the statutory purpose being pursued. [8] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85].…
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153
Citation 5 (Para 2)

…204 CLR 82 [163]. This statement was applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] ‑ [88].…
Maxcon Constructions Pty Ltd v Vadasz (No 2) [2017] SASCFC 2
Citation 6 (Para 3)

…her element. Even a single order can be the subject of division into two elements for this purpose. [23] Maxcon Constructions Pty Ltd v Vadasz (No 2) [2017] SASCFC 2; (2017) 341 ALR 628[224]. [24] Maxcon [222].…
Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282
Citation 7 (Para 8)

…e impugned condition. In these circumstances … it is not possible to sever the impugned condition. [25] Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282; (2014) 289 FLR 82. [26] Ede [47].…
McKay v Commissioner of Main Roads [2013] WASCA 135
Citation 8 (Para 12)

…to be heard by a differently constituted body where, for example, there is a reasonable apprehension of bias. [27] McKay v Commissioner of Main Roads [2013] WASCA 135 [362].…
Young v Child Support Registrar [2009] FCA 120
Citation 9 (Para 2)

…f error concerns departures from limits upon the exercise of power. The latter does not. [1] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASC…
Re Narula, Ng & Hammersley; Ex parte Atanasoski [2003] WASCA 156
Citation 10 (Para 2)

…ld not be struck down to any greater extent than the defect has affected it. (citations omitted) [22] Re Narula, Ng & Hammersley; Ex parte Atanasoski [2003] WASCA 156 [49] ‑ [51].…
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
Citation 11 (Para 2)

…e former kind of error concerns departures from limits upon the exercise of power. The latter does not. [1] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Pe…
Bray v Workers Rehabilitation & Compensation Corporation [1994] SASC 4478
Citation 12

…selton [2018] WASCA 38 Basra v Minister for Immigration and Border Protection [2018] FCA 422 Bray v Workers Rehabilitation & Compensation Corporation (1994) 62 SASR 218 Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282; (2014) 289 FLR 82 Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, M…

Legislation Cited

Building and Construction Industry Security of Payment Act 2009 (TAS)
1 mention (from Para 3)
Liquor Control Act 1988 (WA)
1 mention (from Para 2)