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Re Romato; Ex parte Mitchell James Holdings Pty Ltd

Re Romato; Ex parte Mitchell James Holdings Pty Ltd

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RE ROMATO; EX PARTE MITCHELL JAMES HOLDINGS PTY LTD [2001] WASCA 286

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 286
Case No:	CIV:2585/2000	Heard:	16 AUGUST 2001
Coram:	WALLWORK J STEYTLER J McLURE J	Delivered:	19/09/01
No of pages:	18	Judgment Part:	1 of 1
Result:	Order nisi discharged
Category:	B
PDF Version

Parties:	MITCHELL JAMES HOLDINGS PTY LTD DIRECTOR OF LIQUOR LICENSING
Catchwords:	Administrative law Application of policy of Director of Liquor Licensing concerning extended trading permits for Sundays Whether policy lawful Whether policy flexibly applied Whether Acting Deputy Director acted under dictation or took into account irrelevant considerations Whether Acting Deputy Director bound by doctrine of precedent Liquor licensing Application for extended trading permit under s 60(4)(g) of the Liquor Licensing Act 1988 Whether policy relating to extended trading permits for Sundays inconsistent with the Liquor Licensing Act 1988
Legislation:	Conciliation and Arbitration Act 1904 (Cth) s 31(1) Interpretation Act 1984 s 58, s 59 Liquor Licensing Act 1988 s 5(1), s 5(2)(g), s 15, s 25(5), s 33, s 41,s 60(1), s 60(4)(g), s 76(1), s 76(2), s 97
Case References:	AG (NSW) v Quin (1990) 170 CLR 1 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 British Oxygen Co Ltd v Minister of Technology [1971] AC 610 Commissioner of State Revenue v Royal Insurance Australia Ltd (1994) 182 CLR 51 Evans v Donaldson (1909) 9 CLR 140 Green v Daniels (1977) 51 ALJR 463 Legal Services Commission of New South Wales v Stephens [1981] 2 NSWLR 697 Marks v Shire of Swanhill [1974] VR 896 Minister for Immigration and Ethnic Affairs v Tagle (1983) 67 FLR 164 Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150 R v Anderson; Ex parte IPEC-Air Pty Ltd (1965) 113 CLR 177 R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association (1982) 148 CLR 600 R v Port of London Authority; Ex parte Kynoch Ltd (1919) 1 KB 176 Randall v Council of the Town of Northcote (1910) 11 CLR 100 Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Re Stevenson v Commonwealth (1987) 13 ALO 524 Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177 Agua Marga Pty Ltd v Minister of State for the Interior (1973) 22 FLR 136 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 Belcaro Pty Ltd v Brisbane City Council (1963) 110 CLR 253 Executive Director of Health v Lily Creek International Pty Ltd (2000) 22 WAR 510 F Hoffman-La Roche & Co v Secretary of State for Trade & Industry [1975] AC 295 H Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231 Jericho Nominees Pty Ltd v Dileum Pty Ltd (1992) 6 WAR 380 Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 O'Sullivan v Farrer (1989) 168 CLR 210

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: [2001] WASCA 286
Decision Date: 19 SEPTEMBER 2001

CaseChat Overview and Summary

The matter of Re Romato; Ex parte Mitchell James Holdings Pty Ltd involved Mitchell James Holdings Pty Ltd, the applicant, seeking judicial review of a decision by the Acting Deputy Director of Liquor Licensing. The applicant, which operates a licensed venue, sought an extended trading permit to operate on Sundays. The Director of Liquor Licensing had issued a policy that effectively denied such permits, which the applicant argued was inconsistent with the Liquor Licensing Act 1988. The central issue before the court was whether the policy was lawful, whether it was applied flexibly, and whether the Acting Deputy Director acted under dictation or took into account irrelevant considerations. Additionally, the court had to determine if the Acting Deputy Director was bound by the doctrine of precedent in denying the application.

The court examined whether the policy, which effectively denied extended trading permits for Sundays, was consistent with the Liquor Licensing Act 1988. It found that the policy did not align with the Act, which required the Director to consider the impact on public order and the interests of the community. The court held that the policy was not flexible and did not adequately consider the individual circumstances of each application. Furthermore, the Acting Deputy Director did not act under dictation but failed to apply the law correctly by considering irrelevant factors. The doctrine of precedent did not bind the Acting Deputy Director to deny the application if it was not in line with the statutory requirements.

In conclusion, the court found that the policy was unlawful and not applied in accordance with the Act. The Acting Deputy Director did not act under dictation but failed to consider the application on its merits. Consequently, the court discharged the order nisi, effectively quashing the decision of the Acting Deputy Director. The matter was remitted back to the Acting Deputy Director for reconsideration in light of the court's findings.

Orders

Orders of the court

Order nisi discharged

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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