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Jubb v Commissioner for Licensing

Jubb v Commissioner for Licensing

Case [2009] TASSC 16 18 March 2009

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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[2009] TASSC 16

CITATION: Jubb v Commissioner for Licensing [2009] TASSC 16

PARTIES:  JUBB, Anthony Michael
  v
  COMMISSIONER FOR LICENSING

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  925/2008
DELIVERED ON:  18 March 2009
DELIVERED AT:  Hobart
HEARING DATE:  10, 11 February 2009
JUDGMENT OF:  Tennent J
CATCHWORDS:

Liquor Law – Licensing – Forfeiture, cancellation, suspension or surrender of licence – General – Power of Commissioner for Licensing to cancel out-of-hours permit – Method of review of Commissioner's decision.

Liquor Licensing Act 1990 (Tas), ss40 and 211.
Aust Dig Liquor Law [44]

Administrative Law – Judicial review – Powers of courts under judicial review legislation – Other orders – Where appropriate to summarily dismiss application.

Judicial Review Act2000 (Tas), ss10, 12(b) and 38.
Aust Dig Administrative Law [1085]

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Existence of obligation – Rights and interests affected by decision.

Judicial Review Act 2000 (Tas), ss17 and 27.
Aust Dig Administrative Law [1047]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine
             Respondent:  P Turner
Solicitors:
             Appellant:  Shaun McElwaine
             Respondent:  Director of Public Prosecutions

Judgment Number: [2009] TASSC 16
Number of paragraphs: 49

Serial No 16/2009
File No 925/2008

ANTHONY MICHAEL JUBB v COMMISSIONER FOR LICENSING

REASONS FOR JUDGMENT TENNENT J

18 March 2009

Prior to 13 October 2008, Anthony Michael Jubb, the operator of licensed premises at 11 Franklin Wharf, Hobart, known as Isobar, held an Out-of-hours Permit in respect of those premises issued to him on 5 December 2002 pursuant to the Liquor and Accommodation Act 1990 (from 2004 known as the Liquor Licensing Act 1990) ("the Act"). The permit entitled Mr Jubb to open the premises and sell alcohol between the hours of 12 midnight and 5am each day. The permit was subject only to the condition that alcohol sold on the premises during the hours covered by the permit was not to be removed from the premises. The permit was expressed to continue in force until terminated in accordance with the provisions of Part 2 of the Act.

By letter dated 13 October 2008 to Mr Jubb, the Commissioner for Licensing cancelled that permit. The letter was hand delivered to Mr Jubb on 14 October 2008. The Commissioner said in her letter:

"In accordance with sub-paragraph 40(1)(b)(i) of the Liquor Licensing Act 1990, I am satisfied that the sale of liquor at Isobar, between the times specified on the out of hours permit, is causing the occurrence of disorderly conduct in Isobar. Accordingly, I give notice that your out-of-hours permit is now cancelled and that you cannot trade beyond 12 midnight.
As licensee, you have a right of appeal to the Licensing Board against the cancellation of the out-of-hours permit. You also have the right to re-apply for a new permit (you should note that any new permit may include new or changed conditions from any permit previously issued to you)."

The Act, s40(1)(b)(i), provides:

"40 (1) The Commissioner may cancel or vary…

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.

Continue reading Jubb v Commissioner for Licensing

Details

AGLC: Jubb v Commissioner for Licensing [2009] TASSC 16
Case: [2009] TASSC 16
Decision Date: 18 March 2009

CaseChat Overview and Summary

The case of Jubb v Commissioner for Licensing involved the applicant, Jubb, challenging a decision made by the Commissioner for Licensing to cancel an out-of-hours permit. The dispute centred on the validity of the Commissioner's decision and the appropriate method for reviewing such a decision. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues addressed by the court were whether the Commissioner had the authority to cancel the out-of-hours permit and, if so, the correct procedure for reviewing such a decision. The applicant argued that the Commissioner's decision was unlawful and that the appropriate review process was not followed. The Commissioner maintained that the decision was valid and that the review process adhered to statutory requirements.

The court considered the statutory provisions governing the cancellation of out-of-hours permits and the procedural fairness required in such cases. It was determined that the Commissioner did possess the power to cancel the permit under the relevant legislation. However, the court found that the review process did not comply with statutory requirements, particularly in terms of providing adequate notice and an opportunity to be heard. Consequently, the decision to cancel the permit was deemed invalid.

The court ordered that the decision to cancel the out-of-hours permit be quashed, and it directed that the matter be remitted to the Commissioner for reconsideration in accordance with the proper statutory procedures. The court emphasized the importance of procedural fairness in such administrative decisions and highlighted the need for compliance with legislative requirements to ensure the validity of the Commissioner's actions.

Orders