WHILAN Holdings Pty Ltd v Progressive Trading Pty Ltd
[2013] WASC 354
WHILAN HOLDINGS PTY LTD -v- PROGRESSIVE TRADING PTY LTD [2013] WASC 354
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 354 | |
| Case No: | GDA:11/2013 | 7 AUGUST 2013 | |
| Coram: | PRITCHARD J | 7/08/13 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for stay is dismissed | ||
| B | |||
| PDF Version |
| Parties: | WHILAN HOLDINGS PTY LTD VASSE HOLDINGS PTY LTD QUEENS STREET TAVERN PTY LTD OAKLINE PTY LTD PROGRESSIVE TRADING PTY LTD WOOLWORTHS LTD EXECUTIVE DIRECTOR OF PUBLIC HEALTH COMMISSIONER OF POLICE THE LIQUOR COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Application for a stay in support of an application for leave to appeal Application for a stay in support of an application for judicial review Whether reasonable prospects of success on an appeal could be established Whether denial of procedural fairness could be established |
Legislation: | Liquor Control Act 1988 (WA) |
Case References: | Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) [2013] WASC 98 Hancock v Executive Director of Public Health [2008] WASC 224 OD Transport v Western Australia Government Railways Commission (1986) 13 FCR 270 Schreuder v Murray [2009] WASCA 75 Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WHILAN HOLDINGS PTY LTD -v- PROGRESSIVE TRADING PTY LTD [2013] WASC 354 CORAM : PRITCHARD J HEARD : 7 AUGUST 2013 DELIVERED : 7 AUGUST 2013 FILE NO/S : GDA 11 of 2013 BETWEEN : WHILAN HOLDINGS PTY LTD
- First Applicant
VASSE HOLDINGS PTY LTD
Second Applicant
QUEENS STREET TAVERN PTY LTD
Third Applicant
OAKLINE PTY LTD
Fourth Applicant
AND
PROGRESSIVE TRADING PTY LTD
First Respondent
WOOLWORTHS LTD
Second Respondent
EXECUTIVE DIRECTOR OF PUBLIC HEALTH
Third Respondent
COMMISSIONER OF POLICE
Fourth Respondent
- First Plaintiff
VASSE HOLDINGS PTY LTD
Second Plaintiff
QUEENS STREET TAVERN PTY LTD
Third Plaintiff
OAKLINE PTY LTD
Fourth Plaintiff
AND
THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
First Defendant
PROGRESSIVE TRADING PTY LTD
Second Defendant
WOOLWORTHS LTD
Third Defendant
EXECUTIVE DIRECTOR OF PUBLIC HEALTH
Fourth Defendant
COMMISSIONER OF POLICE
Fifth Defendant
ON APPEAL FROM:
For File No : GDA 11 of 2013
Jurisdiction : THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
Coram : MR S RAFFERTY (DEPUTY CHAIRPERSON)
Citation : L30/01/249
Catchwords:
Application for a stay in support of an application for leave to appeal - Application for a stay in support of an application for judicial review - Whether reasonable prospects of success on an appeal could be established - Whether denial of procedural fairness could be established
Legislation:
Liquor Control Act 1988 (WA)
Result:
Application for stay is dismissed
Category: B
Representation:
GDA 11 of 2013
Counsel:
First Applicant : Mr I Weldon
Second Applicant : Mr I Weldon
Third Applicant : Mr I Weldon
Fourth Applicant : Mr I Weldon
First Respondent : Mr J A Von Altenstadt
Second Respondent : Mr H Jackson
Third Respondent : No appearance
Fourth Respondent : No appearance
Solicitors:
First Applicant : Murfett Legal
Second Applicant : Murfett Legal
Third Applicant : Murfett Legal
Fourth Applicant : Murfett Legal
First Respondent : AVA Legal
Second Respondent : Cullen Babington Hughes
Third Respondent : No appearance
Fourth Respondent : No appearance
CIV 2153 of 2013
Counsel:
First Plaintiff : Mr I Weldon
Second Plaintiff : Mr I Weldon
Third Plaintiff : Mr I Weldon
Fourth Plaintiff : Mr I Weldon
First Defendant : No appearance
Second Defendant : Mr J A Von Altenstadt
Third Defendant : Mr H Jackson
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Solicitors:
First Plaintiff : Murfett Legal
Second Plaintiff : Murfett Legal
Third Plaintiff : Murfett Legal
Fourth Plaintiff : Murfett Legal
First Defendant : No appearance
Second Defendant : AVA Legal
Third Defendant : Cullen Babington Hughes
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Case(s) referred to in judgment(s):
Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) [2013] WASC 98
Hancock v Executive Director of Public Health [2008] WASC 224
OD Transport v Western Australia Government Railways Commission (1986) 13 FCR 270
Schreuder v Murray [2009] WASCA 75
Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7
1 PRITCHARD J: The applicants seek a stay in support of an application for leave to appeal and an application for judicial review. The applications for leave to appeal and for judicial review arise out of decisions made by the Deputy Chairperson of the Liquor Commission (the Deputy Chairperson) on 25 June 2013 and 17 July 2013, both of which are to the same effect. Before dealing with those decisions it is necessary to refer to the factual background.
1. Background to these proceedings
2 The applicants lodged objections to applications by Progressive Trading Pty Ltd and Woolworths Ltd for the grant of liquor licences in respect of premises in the Busselton area. The Director of Liquor Licensing (Director) dealt with those applications for liquor licences on the papers. The applicants sought access to the material that was relied upon by Progressive Trading and Woolworths for the purposes of their applications. The applicants did not obtain access to that material before the Director made his decisions to grant liquor licenses to Progressive Trading and to Woolworths.
3 The applicants then applied to the Liquor Commission for a review of the Director's decisions to grant the licences. The applicants also sought that the Liquor Commission determine as a preliminary question whether they had been denied procedural fairness by the Director. The applicants' request for a preliminary hearing was the subject of the Deputy Chairperson's decision of 25 June 2013 and 17 July 2013.
4 The decision of 25 June 2013 is set out in a letter from the Deputy Chairperson to the solicitors for the applicants. The Deputy Chairperson advised that:
I refer to your email of 24 June 2013 to the Commission raising issues in relation to the availability of counsel at the directions hearing to hear the preliminary point of procedural fairness in respect of these applications before me on 15 July 2013.
Your concerns are noted and in order to progress this application for review in a fair manner for all parties concerned, please note that the preliminary hearing shall stand vacated and this review application will be listed for the substantive hearing on Thursday, 8 August 2013.
5 In his letter of 17 July 2013, the Deputy Chairperson advised that the review application (which appears to refer to the procedural fairness point) would be heard at the substantive review hearing before the Liquor Commission on 8 August 2013.
6 The tenor of those letters indicated that the applicants' concerns in relation to the denial of procedural fairness by the Director would be heard by the Liquor Commission on 8 August 2013 (ie tomorrow).
7 The applicants seek a stay of the decision(s) of the Deputy Chairperson to proceed to deal with the question of procedural fairness at the same time as the substantive review hearing tomorrow.
8 The complaint that the applicants now make is twofold. First, they say that they have been denied a sufficient opportunity to see the documentation relied upon by Progressive Trading and Woolworths. As a result of that, their second complaint is that they have been denied the opportunity to put relevant responsive material to that documentation before the Director for his or her consideration.
9 Counsel for the applicants accepted in the course of argument today that their first complaint had been resolved, by the provision to the applicants' solicitors of all of the documentation which was relied upon by Progressive Trading and Woolworths, by about 26 July 2013. So, at least from about that time, there has been the opportunity for the applicants to see all of that documentation.
10 The applicants' remaining complaint is that they have been denied procedural fairness in relation to the opportunity to put on material responding to the documentation relied upon by Progressive Trading and Woolworths.
2. The tests for the grant of a stay in respect of an application for leave to appeal and in respect of an application for judicial review
11 As I have already noted, the application for a stay is apparently brought in support of both the application for leave to appeal (the appeal itself is out of time), and the judicial review application, in respect of the decision(s) of the Deputy Chairperson. The tests for the grant of a stay in each of those contexts are slightly different, but ordinarily, at least in practical terms, would amount to no different outcome, save for one possible exception to which I will come in a moment.
12 In respect of an application for a stay in support of an application for judicial review, the test for the grant of a stay was considered by Owen J (as he then was) in Stampalia v The Racing Penalties Appeal Tribunal of Western Australia. In that decision, his Honour observed:1
I think the test can be formulated in this way: has the applicant demonstrated that there are special circumstances sufficient to satisfy the court that it is just and reasonable to order a stay so as to preserve the subject-matter and integrity of the litigation? This formulation is sufficiently broad to encompass factors that would normally be taken into account in considering the balance of convenience.
13 In respect of an application for a stay in support of an appeal, the test for the grant of a stay was discussed by Buss JA in his decision in Schreuder v Murray. His Honour said:2
The nature of the criteria which are ordinarily relevant to the exercise of this court’s discretion to grant a stay, pending an appeal, are well-established ... .
Although it is ordinarily necessary for an applicant for a stay pending an appeal to establish that he or she has reasonable prospects of success on the appeal, the applicant’s prospects of success are, to some extent, interdependent with the balance of convenience where any right of appeal (with or without leave) would be rendered nugatory if a stay was not granted.
14 His Honour referred to applications for interlocutory injunctive relief, where in recent years there has been recognition of the interdependency of all of the considerations relevant to the grant of relief.3
15 For the reasons which follow, I am not persuaded on the application of those tests that this is an appropriate case for the grant of a stay in support of the application for leave to appeal or in support of the application for judicial review.
3. The application for a stay in support of an application for leave to appeal
16 The first criterion for the grant of a stay requires consideration of whether there are reasonable prosects of success on the appeal. It seems to me on the argument that I have heard so far that the applicants face a real difficulty in establishing those prospects of success for two reasons. First, they would need to demonstrate that the decision made by the Deputy Chairperson can be the subject of an appeal. Secondly, they would need to establish that there has been a denial of procedural fairness.
(a) Whether the decision made by the Deputy Chairperson can be the subject of an appeal
17 The decision complained of - whether it is the decision of 25 June 2013 or 17 July 2013 - was a decision made by the Deputy Chairperson. The applicants would need to demonstrate that a decision made by the Deputy Chairperson can be the subject of an appeal if they are to establish that they have reasonable prospects of success on that appeal.
18 Under s 28(1) the Liquor Control Act 1988 (WA) (LC Act), a party dissatisfied with a 'decision' of the Liquor Commission may appeal. However, s 28(2) of the LC Act provides that 'no appeal lies against a decision of the Commission constituted by three members except to the Supreme Court on a question of law'. In this case, there does not seem to be any dispute about whether the Deputy Chairperson's decision was a 'decision' having regard to the broad terms of the definition of 'decision' in s 3 of the LC Act. However, it seems to me that there is a real question as to whether the decision(s) in this case was made by the Liquor Commission constituted by three members, such that an appeal lies to this Court.
19 Counsel for the applicants has submitted that the decision(s) of the Deputy Chairperson should be viewed as having been made by him on behalf of the other members of the Liquor Commission, who are apparently listed to hear the review tomorrow.
20 The first difficulty is that the letters of 25 June 2013 and 17 July 2013 were, on their face, written by the Deputy Chairperson in his capacity as the Deputy Chairperson. There was no indication in the letters that he was making the decision or decisions there referred to on behalf of any other members of the Liquor Commission.
21 Apart from the practical textual difficulty to which I have just referred, it seems to me that the decision made by the Deputy Chairperson was not a decision that was required to be made by three members of the Liquor Commission. I say that having regard to s 25(5)(ba) of the LC Act. Section 25 provides that in certain circumstances, in relation to review decisions, the Liquor Commission is to be constituted by three members.4 However, s 25(5)(ba) provides that:
(5) This section does not apply to any decision -
…
(ba) which is a decision made in the course of, or for the purposes of, an application or matter but is not the decision, or one of the decisions, disposing of the application or matter …
(b) Whether the applicants could establish a denial of procedural fairness
23 It is undoubtedly the case that the Director must grant procedural fairness in respect of decisions made in relation to applications for liquor licences under the LC Act. The requirement for procedural fairness was discussed by the Chief Justice in his decision in Hancock v Executive Director of Public Health.5 His Honour referred to the requirement in s 16(11) of the LC Act that:
… the licensing authority shall ensure that each party to a proceeding before it is given a reasonable opportunity to present its case and, in particular, to inspect any documents to which the licensing authority proposes to have regard in making a determination in the proceedings and to make submissions in relation to those documents.
24 It seems to me that the applicants would have difficulty establishing a denial of procedural fairness in the circumstances outlined in the affidavits before me today. At least in respect of the opportunity to inspect documents, that is because there can be no doubt that the applicants have now been provided with all of the documentation relied on by Progressive Trading and Woolworths. (I note that the documentation which has been provided to the applicants may perhaps have exceeded the documentation that the Director proposed to refer, and did in fact have regard, in the applications for the liquor licences. The requirement in s 16(11) of the LC Act refers to documents that the licensing authority proposes to have regard, as opposed to all of the documentation that an applicant for a liquor licence might put before the licensing authority.)
25 A second difficulty is as follows. It might be possible to say that a party would be denied procedural fairness by being denied the opportunity to respond to an issue relied upon by the Director by providing responsive evidentiary material. That deficiency could not be cured by a proceeding before the Liquor Commission because the Commission is confined in its review to the material before the Director. However, there has been no evidence provided by the applicants today of the issues upon which the Director relied to which they would wish to respond, or the evidentiary material they would wish to put before the Director in order to respond to those issues. I am merely told that the applicants have an idea of the material on which they would wish to rely, and may pursue that issue in another forum.
26 For the reasons above, it seems to me that the applicants face real difficulties in establishing that they have a reasonable prospect of success in their appeal.
4. The application for a stay in support of an application for judicial review
27 The difficulties described above apply equally in relation to the application for a stay in support of the application for judicial review, insofar as it relies upon a denial of procedural fairness.
5. Balance of convenience / just and reasonable
28 The applicants' stay application also founders because the Liquor Commission proposes to deal with the applicants' concerns about the denial of procedural fairness as part of its review, which is listed for hearing tomorrow.
29 The concern that counsel for the applicants identified today was the prospect that the Commission might proceed tomorrow to deal with the substantive issues in the review, in addition to the question of procedural fairness. But that does not detract from the fact that it is apparent that the Liquor Commission proposes to deal with the procedural fairness issue tomorrow. Therefore the possibility exists that the concerns identified by the applicant may be addressed as a result of that review hearing tomorrow.
30 Nothing in these reasons should be construed as in any way indicating a view about what the Liquor Commission should or should not decide in respect of any application which it might hear tomorrow arising from the applicants' concern about procedural fairness. I emphasise that it has been obvious as a result of what I have heard today that this Court certainly does not have before it all of the material that would be relevant to the consideration of that question. Nevertheless, the point remains that it is possible that the Liquor Commission may well decide after hearing argument tomorrow that there has been a denial of procedural fairness, and that it would act accordingly.
31 That possibility undermines a claim to a denial of procedural fairness or, alternatively, bears on the question of balance of convenience or on the question of 'just and reasonable'. It seems to me that this consideration weighs very heavily against the grant of a stay in this circumstance.
32 The only other observation I need to make in relation to the latter point is to refer to observations by Hall J in Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) where his Honour stated:6
The content of the rules of procedural fairness will always be subject to the proper construction of the statute under which a particular decision is made … . Procedural fairness does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise … .
33 The proceedings in that case involved a challenge in respect of a preliminary step in the decision-making process. His Honour observed:7
It is not a step that adversely affects the applicant’s rights and the process is far from complete. To allege that an incomplete process is deficient is an exercise in futility.
… [P]rerogative writs are a discretionary remedy and this is not a case in which that discretion should be exercised in favour of the applicant …
5. Conclusion
34 Having regard to the test in respect of a stay pending an appeal, the two factors I have referred to above - reasonable prospects of success and balance of convenience - do not, taken together, support the grant of a stay.
35 The grant of a stay should also be denied on the grounds that it is not just and reasonable to order a stay in support of the application for judicial review. There are no special circumstances sufficient to satisfy me that a stay is necessary to preserve the subject matter and the integrity of the litigation. I have reached this conclusion after considering the strength of the applicants' foreshadowed case, balance of convenience considerations and the prospect that the Liquor Commission in its hearing tomorrow may well address the concerns in relation to procedural fairness identified by the applicants today.
36 In all of those circumstances, I would dismiss the application for a stay made by the applicants today.
1Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7 [11].
2Schreuder v Murray [2009] WASCA 75 [6] - [7].
3Schreuder v Murray [2009] WASCA 75 [7] citing OD Transport v Western Australia Government Railways Commission (1986) 13 FCR 270, 272 - 273.
4Liquor Control Act 1988 (WA) s 25(2b).
5Hancock v Executive Director of Public Health [2008] WASC 224 [44] - [45] (Martin CJ).
6Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) [2013] WASC 98 [55].
7Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) [2013] WASC 98 [8] - [9].
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