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Santowski v Chief Executive, Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development

 

[2005] QSC 147

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HELMAN J

Application No. 200 of 2005

BRETT ALLAN SANTOWSKI

First Applicant

and

 

SANTOWSKI HOLDINGS PTY LTD

Second Applicant

and

 

CHIEF EXECUTIVE, LIQUOR LICENSING DIVISION, DEPARTMENT OF

Respondent

TOURISM, FAIR TRADING AND WINE INDUSTRY DEVELOPMENT

 

CAIRNS

DATE 13/05/2005

JUDGMENT

HIS HONOUR: This is an application for a statutory order or review under the Judicial Review Act 1991. The applicants seek the review of a decision of the respondent made on 5 May 2005 whereby the respondent gave notice under the Liquor Act 1992 of his intention to impose conditions, effective from next Monday 16 May 2005, to restrict the type, quantity, and availability of liquor from the applicants' premises, the Exchange Hotel, Coen.

The applicants claim to be aggrieved by the decision because they hold the licence for the premises, which are leased in the name of the second applicant and operated by the first applicant and his wife. The decision will, the applicants assert, severely affect their ability to meet the regular and continuing financial commitments of the business, have a real and immediate impact on their livelihood, and substantially reduce the market value of the lease of the premises.

In an affidavit filed on 11 May 2005 the first applicant set out the details, so far as he was able to specify them, of the likely effect of the respondent's proposed conditions. In paragraph 28 of that affidavit the first applicant swore that the effect of the proposed conditions would be to reduce the total income of the hotel by 15 per cent. Applying that figure to other financial details given by the applicants, including their trading account for the year ended the 30th of June 2004, one sees the reduction in income comes to $2,422.77 a week. It is relevant to note that s. 112A of the Liquor Act provides that compensation is not payable to any person for the variation of a licence under s. 111(2), the provision upon which the respondent relies.

The grounds of the application are five. I do not think that it is appropriate that I discuss them in great detail, since all I am asked to decide is whether an interlocutory stay should be granted and what directions should be made. It will suffice to say that on behalf of the respondent Mr Plunkett was able to demonstrate, I think, that the applicants' prospects of success are not particularly good. First ground proceeds from the construction the applicants seek to put upon s. 111(2), and Mr Plunkett's argument to the effect that there was no substance in that ground was a strong one in my view. The second and third grounds seek to canvass matters which go to the merits of the decision of the respondent and for that reason may not succeed. The fourth ground asserts a breach of the rules of natural justice, and bearing in mind that the applicants were given notice of the proposed conditions in a letter dated 28 January 2005 and the reasons for the imposition of the conditions, I conclude that that ground as well may not succeed. The fifth and final ground is an allegation that the respondent acted in bad faith in, it appears it is suggested, at first referring to s. 107C of the Liquor Act but then later seeking to rely on s. 111(2). I am not persuaded that is a particularly strong ground.

On behalf of the respondent the submission is made that there is no serious issue to be tried. On behalf of the applicants it is submitted that it cannot be said that the application has no prospect of success. That latter submission, I think, is valid, and therefore although I have reservations, as I have indicated, about the issues sought to be raised by the applicants, I am not persuaded that it has been demonstrated that there is no serious issue to be tried. The resolution of those issues will be for a later time in this proceeding.

It is common ground however that a second consideration is relevant to this part of the proceedings because the applicants seek an order staying the operation of the decision until the matters before the Court are finally determined. It is common ground that the question of the balance of convenience is relevant to the outcome of that application for interlocutory relief.

The evidence before me shows that the decision of the respondent proceeds from a concern that alcohol sold at the applicants' premises may be taken into restricted areas and there cause considerable harm. In the respondent's letter of 5 May 2005 it was said that there was overwhelming evidence in the Cape York Justice Study Report that harmful levels of alcohol consumption by aboriginal people in the Cape York region are the chief precursor to violence, crime, injury, and ill health in those populations. It was said further that there is substantial evidence, in an investigation report dated 14 November 2004 by a principal liquor compliance officer that there is an unacceptable level of harm in the restricted areas of the shires of Lockhart River, Aurukun, and Pormpuraaw which can be attributed to “sly grog” sourced from nearby hotels and roadhouses.

It was further pointed out that on 1 March 2005 strict conditions were imposed on the Archer River and Musgrave Telegraph roadhouses to restrict the type, quantity, and availability of liquor available from those premises. The Archer River roadhouse is north of Coen, and the Musgrave Telegraph roadhouse is south of Coen. Those conditions were to restrict the type, quantity, and availability of liquor available from those premises. The sale of liquor for consumption off those premises is restricted in various ways, and those restrictions, it was said, were likely to result in a shift in the demand for heavy beer, spirits, and wine from the roadhouses to the applicants' hotel in Coen. It was added that for fairness and effectiveness it was necessary to restrict the type, quantity, and availability of liquor available from the applicants' hotel to complement the conditions imposed on the roadhouses, and the alcohol management plans in Lockhart River, Aurukun, and Pormpuraaw.

While the financial burden that these proposed conditions may inflict upon the applicants is of course an important consideration when determining where the balance of convenience lies, so too is the likelihood of the ill effects of the sale of liquor to persons who will take it into the restricted areas. It should be noted that the financial loss to the applicants, though one of substance, will be a gradual one, and it is relevant to bear in mind that it seems likely that this review will be completed with reasonable expedition. In those circumstances I am not persuaded that the balance of convenience favours the imposition of the stay sought by the applicants.

As a second argument in favour of a stay, Mr Henry, for the applicants, referred me to a decision of the Commercial and Consumer Tribunal in the matter of Neary and this respondent decided on 1 April this year. That case concerned the Chillagoe Hotel Motel. A stay was imposed on a decision by the respondent on certain conditions which I conclude would not be sufficient in the case of this hotel to ensure that damage, even in the short term, did not occur as a result of the sale of liquor from the applicants' hotel not subject to the conditions proposed by the respondent. Accordingly, I refuse the application for the interlocutory order sought.

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Editorial Notes

  • Published Case Name:

    Brett Allan Santowski v Chief Executive

  • Shortened Case Name:

    Santowski v Chief Executive, Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development

  • MNC:

    [2005] QSC 147

  • Court:

    QSC

  • Judge(s):

    Helman J

  • Date:

    13 May 2005

Litigation History

No Litigation History

Appeal Status

No Status