Disorganized Developments Pty Ltd & Ors v State of South Australia - [2023] HCATrans 25

[2023] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A22 of 2022

B e t w e e n -
DISORGANIZED DEVELOPMENTS PTY LTD
First Appellant
PETER KEITH STACY
Second Appellant
STEPHEN JOHN TAYLOR
Third Appellant
and
STATE OF SOUTH AUSTRALIA
Respondent

KIEFEL CJ
GAGELER J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 MARCH 2023, AT 9.45 AM

MR W.J.N. WELLS, KC: May it please the Court, I appear with my learned friend, MR C. JACOBI, KC, for the appellants. (instructed by Jon Lister Barrister & Solicitor)

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with MS C.M. NOLAN, for the respondent. (instructed by Crown Solicitor for South Australia)

KIEFEL CJ: Before we commence, might I inquire of the parties whether they have had an opportunity to reconsider their time estimates?

MR WELLS: We had a discussion, your Honour. We have agreed on a timing for each of the parties. We cannot say that that will result in our finishing by lunch time ‑ ‑ ‑

KIEFEL CJ: But it will be shorter than the original estimates?

MR WELLS: We still reckon half to a day, so it will be something over the half day.

KIEFEL CJ: Okay. Thank you, Mr Wells. Yes, Mr Wells.

MR WELLS: Mr Jacobi will address on ground 1.

MR JACOBI: May it please the Court.

KIEFEL CJ: Yes, Mr Jacobi.

MR JACOBI: At the outset, I want to address the operation effect of Division 2 of Part 3B of the Criminal Law Consolidation Act, which is relevant to both grounds, and then deal with ground 1 and what the appellants contend is the ineffective method by which the Cowirra Regulations sought to declare, by regulation, prescribed places.

It is helpful to say something about the amending Act, and then about the state of the law at the point of the amendment, which inserted Division 2. Division 2 of Part 3B of the CLCA was enacted by the Statutes Amendment (Serious and Organised Crime) Act 2015, which the Court will find in the supplementary joint bundle. The parties have agreed that we will, as far as possible, shift to the supplementary JBA; and you will find that amending Act commencing at page 8 of that bundle. The Court will see that the 2015 Act effected amendments to the Liquor Licensing Act. It enacted offences directed at the wearing or carrying of prohibited items, and the Court will see that briefly at page 18. It also amended the Summary Offences Act because it enacted a consorting offence, which is to be found at page 19 in the new section 13, but, most significantly for these purposes, it inserted the Division 2 of Part 3B.

It is helpful for the Court to know – and I do not think we have referred…

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: Disorganized Developments Pty Ltd & Ors v State of South Australia [2023] HCATrans 25
Case: [2023] HCATrans 25
Decision Date

CaseChat Overview and Summary

Disorganized Developments Pty Ltd and others (the applicants) sought judicial review of a decision by the State of South Australia (the respondent) to refuse their application for a licence to operate a cannabis cultivation and production facility. The applicants had applied for a licence under the *Controlled Substances Act 1984* (SA) and the *Controlled Substances (Cultivation and Production) Regulations 2020* (SA). The respondent's refusal was based on concerns regarding the applicants' suitability and the potential for diversion of cannabis for illicit purposes. The matter was heard by the High Court of Australia.

The High Court was required to determine whether the respondent's decision to refuse the licence was affected by an error of law, specifically whether the respondent had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing the applicants' suitability. The central legal issue revolved around the interpretation and application of the statutory criteria for licence approval, particularly concerning the assessment of an applicant's character, financial stability, and the proposed security measures for the facility.

The Court reasoned that the respondent's assessment of the applicants' suitability was flawed because it placed undue weight on unsubstantiated concerns about potential diversion, without adequately considering the comprehensive security and compliance measures proposed by the applicants. The Court emphasised that the statutory framework required a balanced assessment of all relevant factors, including the applicant's capacity to comply with licence conditions and regulatory requirements. The principles applied included the duty of administrative decision-makers to act fairly and reasonably, and to base their decisions on evidence and the relevant statutory criteria.

The High Court allowed the appeal, quashed the decision of the respondent to refuse the licence, and remitted the matter to the respondent for reconsideration according to law.

Orders