K-Generation Pty Ltd v Liquor Licensing Court

The case of K-Generation Pty Ltd v Liquor Licensing Court concerns a challenge to the constitutional validity of section 28A of the Liquor Licensing Act 1997 (SA) and the legality of decisions made by the Liquor Commissioner and affirmed by the Licensing Court. The plaintiffs, K-Generation, applied for a liquor licence but were refused on the basis of "criminal intelligence" provided to the Liquor and Gambling Commissioner and Licensing Court. The plaintiffs sought judicial review on the grounds that they were denied procedural fairness and that section 28A of the Liquor Licensing Act was constitutionally invalid.

The central legal issues in the case were whether section 28A of the Liquor Licensing Act excludes an aspect of the common law natural justice hearing rule and thereby authorises the denial of natural justice, whether the plaintiffs had waived their right to natural justice, and whether a breach of procedural fairness by an inferior court is reviewable by a superior court. Additionally, the court had to determine the constitutional validity of section 28A.

The court held that section 28A of the Liquor Licensing Act excludes an aspect of the common law natural justice hearing rule, thus extinguishing an aspect of the plaintiffs' right to natural justice. The court found that the plaintiffs were not denied natural justice as the Act did not afford them the right to receive adverse evidence and reasons for the decision. Although it was not necessary to decide, the court noted that the plaintiffs did not waive any right to natural justice, and a breach of procedural fairness by an inferior court is reviewable by a superior court. The court concluded that section 28A of the Liquor Licensing Act is constitutionally invalid as it forces the Licensing Court to act in a manner that offends Chapter III of the Constitution by denying procedural fairness to one party. This involvement of the judiciary in determinations that deny natural justice brings the court into disrepute and undermines its appearance of legitimacy and impartiality.

The court found that section 28A of the Liquor Licensing Act infringed Chapter III of the Constitution and should be severed from the Act. The plaintiffs’ application for judicial review was successful in part, and the decision of the Licensing Court was quashed.