Nielson v Prostitution Licensing Authority

[2009] QSC 316

[2009] QSC 316

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

P LYONS J

No 8013 of 2009

DEBBIE KAY NIELSON	Applicant
and
PROSTITUTION LICENSING AUTHORITY	Respondent

BRISBANE

..DATE 30/07/2009

ORDER

HIS HONOUR: The applicant holds a licence to conduct a brothel under the Prostitution Act. On the 8th of April, 2009, she was charged with some 13 offences.

The respondent then conducted an inquiry under section 26 of the Act.  The ground which enlivened its jurisdiction to do so was that the applicant had been charged with an offence in Queensland: see section 27 of the Act.  Its power in such a case, unlike other cases where an inquiry may be instituted, is only to suspend the licence, the maximum period being 12 months: see section 30, read with section 29.

As a result of that inquiry, the respondent determined by a decision dated 20 July 2009 to suspend the applicant's licence for 12 months.  The applicant has applied for a statutory order of review, and now seeks a stay of the suspension of the licence.

In Re: Murphy v Minister for Minerals and Energy (1995) 2 Qd R 94 White J at 95 said that, "The discretion to restrain or not to restrain should be exercised on substantially the same principles as those on which a Court grants an interlocutory injunction.” It is common ground that this is the appropriate approach to take to the present application.

In Australian Broadcasting Corporation v O'Neill (2006) 80 ALJR 1672, Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed: see 1682-1683) said at 1691 that it is sufficient for a plaintiff seeking an interlocutory injunction to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending a trial.

Their Honours adopted a proposition stated in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622, to the effect that, "How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order the plaintiff seeks".

The applicant has stated some six grounds in its application for a statutory order for review.  One of them is to the effect that the respondent failed to take into account the fact that the alleged offences were unconnected with the premises the subject of the applicant's licence or the exercise of any rights attributable to the licence.

Another is that the respondent erred in law in directing itself that evidence that the premises, the subject of the licence, are very well run, and that the activity, the subject of the charges, was unconnected with the licensed premises, was irrelevant.

A third is that while the respondent in its reasons appeared to recognise that it should not determine whether the applicant was guilty of the charges, nevertheless, it took into account the evidence in the police brief and weighed that up against the fact that the applicant did not go into detail about her defence to those charges in determining what course it should take.

It seems to me that these grounds are not without some prospect of success, and certainly are of sufficient strength to justify the grant of a stay.  In that context, I am mindful that it is anticipated that the final determination of the application should occur within a few months.

It may be that the formulation of the test in O'Neill's case makes it relevant at this point to take into account the balance of convenience.  On the other hand, that may itself be a separate consideration.

There are, in my view, strong reasons in support of the view that the balance of convenience favours a stay.  They relate not only to the personal circumstances of the applicant but also to the potential financial consequences of the stay on others who work at the premises.

In my view, if the issue of a prima facie case or a serious question to be tried is looked at in isolation, the applicant has satisfied the relevant test.  If that is to be looked at together with issues relating to the balance of convenience, the applicant's case is even stronger.

I, in any event, regard the balance of convenience as warranting the stay once one is satisfied that there is sufficient probability of success to considering granting that relief.

The parties have otherwise agreed about directions for the further conduct of the matter.  I will therefore make an order in terms of the draft provided to me which I have initialled and which will be placed with the file.

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