Owens v Normanton Liquor Accord - [2012] QSC 118

SUPREME COURT OF QUEENSLAND

CITATION:

Owens v Normanton Liquor Accord & Ors [2012] QSC 118

PARTIES:

TREVOR JOHN OWENS
(Applicant)
v
NORMANTON LIQUOR ACCORD
(First respondent)
QUEENSLAND POLICE SERVICE
(Second respondent)
OFFICE OF LIQUOR AND GAMING REGULATION
(Third respondent)
CARPENTARIA SHIRE COUNCIL
(Fourth respondent)
NORMANTON BOWLS CLUB INCORPORATED
(Fifth respondent)
A.V. & M.J. ZELLER PTY LTD TRADING AS CENTRAL HOTEL NORMANTON
(Sixth respondent)
DOROTHY PRINCE PTY LTD TRADING AS THE PURPLE PUB
(Seventh respondent)
MAGGIE MAY ENTERPRISES PTY LTD AS THE TRUSTEES FOR THE COOK FAMILY TRUST TRADING AS THE ALBION HOTEL
(Eighth respondent)
THE LAMBERR WUNGARCH JUSTICE GROUP NORMANTON
(Ninth respondent)

FILE NO/S:

523 of 2011

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

27 April 2012

DELIVERED AT:

Cairns

HEARING DATE:

23 March 2012

JUDGE:

Henry J

ORDER:

1. The application of the applicant is refused.
2. I will hear the parties as to costs and what final order should be made as to the third respondent’s application at 9.15am on 11 May 2012.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – where a “liquor accord” purported to ban the applicant – whether the decision to ban was a decision of the “liquor accord” or of each publican – whether publican’s have a common law right to refuse entry to licensed premises – whether the issuance of the prohibition letter was an exercise of public power – whether the accord document should be the subject of a declaration

Judicial Review Act 1991 (Qld)
Liquor Act 1992 (Qld) ss165, 165A, 224

Chase Oyster Bar v Hamo Industries [2010] NSWCA 190
Craig v South Australia (1995) 184 CLR 163
Forbesv New South Wales Trotting Club Ltd (1979) 143 CLR 242
Heatley vThe Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
Hinckley v Star City Pty Ltd & Anor (2011) 284 ALR 154
Luton v Bigg (1721) Skin 291, 90 ER 131
R v Panel On Take-Overs and Mergers, ex parteDatafin PLCand Anor [1987] 1 QB 815
Sealey v Tandy [1902] 1 KB 296
Uston v Resorts International Hotel Inc 445 A 2d 370 (NJ, 1982)
Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177

COUNSEL:

J Trevino for the second respondent
M Jonsson for the third respondent

SOLICITORS:

Fiona Campbell of Aboriginal Torres Strait Islander Legal Service for the applicant
Crown Law for the second respondent, third respondent
MacDonnells Law for the fourth respondent
V Butler for the seventh respondent
R G Marsh for the ninth respondent

The applicant was given notice by a “Normanton Liquor Accord Liquor Prohibition Letter”, that a meeting of the Normanton Liquor accord resolved that he be banned from entering licensed premises in Normanton known as the Albion Hotel, the Central Hotel, the Purple Pub and the Normanton Bowls Club.

The applicant’s “application for review” seeks the following orders:

“1. An order in the nature of certiorari quashing the decision of 23 November 2011 to issue a liquor prohibition letter (letter) to…

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

Case: [2012] QSC 118
Decision Date: 27 April 2012

CaseChat Overview and Summary

Owens commenced proceedings against Normanton Liquor Accord and others seeking judicial review of the accord’s decision to ban him from the premises of each signatory of the accord. The accord was a document signed by the publicans of Normanton which purported to ban the applicant from all their premises. The applicant sought a declaration that the accord was not a valid exercise of public power, and sought an injunction to prevent the accord from being enforced. The accord argued that the decision to ban the applicant was not a decision of the accord, but rather of each individual publican, and that each publican had a common law right to refuse entry to their premises. The accord also argued that the issuance of the prohibition letter was not an exercise of public power.

The court was required to determine whether the accord was a decision of the accord or of each publican, whether publicans had a common law right to refuse entry to their premises, whether the issuance of the prohibition letter was an exercise of public power, and whether the accord should be the subject of a declaration. The court found that the accord was a decision of the accord and not of each individual publican, and that publicans did not have a common law right to refuse entry to their premises. The court also found that the issuance of the prohibition letter was an exercise of public power and that the accord was the subject of a declaration.

The application was refused. The court directed the parties to appear before it to discuss costs and what final order should be made as to the third respondent’s application.

Orders

Orders of the court

1. The application of the applicant is refused.

2. I will hear the parties as to costs and what final order should be made as to the third respondent’s application at 9.15am on 11 May 2012.

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

Full text does not contain this section.

CITATION:	Owens v Normanton Liquor Accord & Ors [2012] QSC 118
PARTIES:	TREVOR JOHN OWENS (Applicant) v NORMANTON LIQUOR ACCORD (First respondent) QUEENSLAND POLICE SERVICE (Second respondent) OFFICE OF LIQUOR AND GAMING REGULATION (Third respondent) CARPENTARIA SHIRE COUNCIL (Fourth respondent) NORMANTON BOWLS CLUB INCORPORATED (Fifth respondent) A.V. & M.J. ZELLER PTY LTD TRADING AS CENTRAL HOTEL NORMANTON (Sixth respondent) DOROTHY PRINCE PTY LTD TRADING AS THE PURPLE PUB (Seventh respondent) MAGGIE MAY ENTERPRISES PTY LTD AS THE TRUSTEES FOR THE COOK FAMILY TRUST TRADING AS THE ALBION HOTEL (Eighth respondent) THE LAMBERR WUNGARCH JUSTICE GROUP NORMANTON (Ninth respondent)
FILE NO/S:	523 of 2011
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	27 April 2012
DELIVERED AT:	Cairns
HEARING DATE:	23 March 2012
JUDGE:	Henry J
ORDER:	1. The application of the applicant is refused. 2. I will hear the parties as to costs and what final order should be made as to the third respondent’s application at 9.15am on 11 May 2012.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – where a “liquor accord” purported to ban the applicant – whether the decision to ban was a decision of the “liquor accord” or of each publican – whether publican’s have a common law right to refuse entry to licensed premises – whether the issuance of the prohibition letter was an exercise of public power – whether the accord document should be the subject of a declaration Judicial Review Act 1991 (Qld) Liquor Act 1992 (Qld) ss165, 165A, 224 Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 Craig v South Australia (1995) 184 CLR 163 Forbesv New South Wales Trotting Club Ltd (1979) 143 CLR 242 Heatley vThe Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 Hinckley v Star City Pty Ltd & Anor (2011) 284 ALR 154 Luton v Bigg (1721) Skin 291, 90 ER 131 R v Panel On Take-Overs and Mergers, ex parteDatafin PLCand Anor [1987] 1 QB 815 Sealey v Tandy [1902] 1 KB 296 Uston v Resorts International Hotel Inc 445 A 2d 370 (NJ, 1982) Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177
COUNSEL:	J Trevino for the second respondent M Jonsson for the third respondent
SOLICITORS:	Fiona Campbell of Aboriginal Torres Strait Islander Legal Service for the applicant Crown Law for the second respondent, third respondent MacDonnells Law for the fourth respondent V Butler for the seventh respondent R G Marsh for the ninth respondent