Meghla v Prostitution Licensing Authority
[2021] QSC 320
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- Unreported Judgment
- Meghla v Prostitution Licensing Authority[2021] QSC 320
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Meghla v Prostitution Licensing Authority[2021] QSC 320
Meghla v Prostitution Licensing Authority[2021] QSC 320
SUPREME COURT OF QUEENSLAND
CITATION: | Meghla v Prostitution Licensing Authority [2021] QSC 320 |
PARTIES: | MANJOT SINGH MEGHLA (applicant) v PROSTITUTION LICENSING AUTHORITY (respondent) |
FILE NO/S: | BS No 13564 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 30 November 2021 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 November 2021 |
JUDGE: | Martin J |
ORDER: |
|
CATCHWORDS: | EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where the applicant seeks an order that the respondent’s decision to suspend his brothel licence for 12 months be suspended until the final determination of the statutory order of review – where the parties agree that there is a prima facie case – where the applicant argues that the balance of convenience favours the status quo because the suspension of the licence will bring about the closure of the brothel, the applicant is the guarantor of the lease of the premises and there is a contract for the sale of the business – where the respondent argues that is an inevitable consequence of a suspension – whether the balance of convenience favours a suspension of the operation of the decision to be granted Prostitution Act 1999, s 26, s 27B Australian Leisure & Hospitality Group Ltd & Ors v Chief Executive, Department of Employment, Economic Development and Innovation & Anor [2009] QSC 354 |
COUNSEL: | CA Jennings QC for the applicant VG Brennan for the respondent |
SOLICITORS: | Nyst Legal for the applicant McInnes Wilson Lawyers for the respondent |
The applicant holds a licence to conduct a brothel under the Prostitution Act 1999. On 6 September this year he was charged with multiple offences concerning the possession and supply of and trafficking in a dangerous drug, unlawful possession of weapons, and contravening a condition of that brothel licence, among other things.
Section 26 of the Prostitution Act empowers the respondent to take disciplinary action against a licensee in defined circumstances. Those circumstances include if the licensee, “has been charged with or convicted of an offence in Queensland or elsewhere”. One of its powers is to suspend the licence.
On 27 September this year, the respondent served the applicant with a disciplinary inquiry notice under s 27B of the Act setting out grounds for disciplinary actions referring to some of the charges against the applicant, annexing those charges to the notice, and inviting the applicant to make submissions about the charges.
On 15 October this year, the applicant through his solicitors provided written submissions in response to the notice given by the respondent. The submissions are some eight pages long together with numerous annexures including character references and evidence of a proposed sale of the brothel.
On 4 November this year, the respondent issued a decision in which it ordered that the applicant’s brothel licence be suspended for a period of 12 months from midnight on 3 December 2021. The reasons refer to a “date of hearing” but that must be an oversight as the inquiry was conducted, as the respondent was entitled to do, by way of correspondence. The applicant has applied for a statutory order of review of that decision. It would not be possible for that application to be heard and determined before 3 December this year and the applicant seeks a stay of the operation of the decision suspending his licence.
It was common ground that the discretion to restrain or not to restrain a decision of this kind should be exercised on substantially the same principles as those on which a court grants an interlocutory injunction. See, for example, Minister for Immigration, Local Government and Ethnic Affairs v Msilanga.[1] There is though some debate about the transposition of rules derived from litigation in private law and their application for the granting of interlocutory relief under a statutory power concerning public law. A part of that debate concerns whether or not irreparable harm needs to be demonstrated by an applicant in order that a stay will be granted.
In Australian Leisure & Hospitality Group Ltd & Ors v Chief Executive, Department of Employment, Economic Development and Innovation & Anor,[2] Applegarth J considered whether an interlocutory injunction should be granted staying the effect of notices given with respect to licensed premises. He referred to the usual authorities dealing with the test to be applied for an interlocutory injunction and said:
“27. I consider that the respective strengths of the parties’ cases should be taken into consideration not simply as a threshold consideration in determining whether there is a ‘serious question to be tried’ before turning to the balance of convenience, but more generally in determining whether awarding or refusing an interlocutory injunction is more likely to cause irreparable harm.”
He went on to say:
“30. The present application does not involve a challenge to the validity of a law, but the public law context raises additional different considerations, at least in determining the balance of convenience, to those that arise in private law litigation in which purely private interests are at stake, and the Court must balance the irreparable harm that will be suffered to those interests. The balance of convenience must take account of the risk to public safety during the period of any interlocutory restraint if the respondents are prevented from exercising powers under s 97. More than purely private interests are at stake.”
The ordinary test for the balance of convenience does not require that an applicant demonstrate that without a stay it will suffer irreparable harm. It should not be confused with the test for a stay of a decision pending an appeal. I accept what Applegarth J said with respect to the difference in approach to the consideration of the public law aspects of an application of this kind and, in particular, that the risk to public safety will always be an issue for consideration. It will, in my respectful opinion, be necessary in an application of this kind, to consider the type of conduct which is being restrained by the decision sought to be reviewed and the length of time for which the stay might apply.
The balance of convenience is to be assessed by considering the extent of any harm which might be suffered by the applicant as opposed to the restraint imposed upon an emanation of the Executive Government and a decision which concerns the proper administration and safety of, in this case, a brothel.
The respondent has conceded that the applicant has demonstrated a prima facie case, but it has sought to demonstrate that it is not a strong case. It is, of course, not possible nor appropriate to examine in detail the various arguments which might be put for and against the applicant’s case. There are some matters, though, which appear to have some strength.
First, the respondent, in paragraph 23 of its reasons, acted upon an inference it drew about an allegation of conduct concerning the applicant and his actions during a search of his home. That inference was drawn from material which it did not identify to the applicant as material upon which it intended to rely, nor did it inform the applicant about an inference it might draw from that material. The respondent relied upon material it discovered in a third-party website and about which it did not alert the applicant.
Secondly, and more importantly, in the respondent’s reasons, its consideration of the submission made by the applicant is cursory. The applicant’s submissions are referred to and it was said that they “were carefully considered by the board in its deliberations”. It is open to the applicant to argue that that is insufficient.
I dealt with this issue in Owen-D’Arcy v Chief Executive, Queensland Corrective Services[3] where I said:
“A decision-maker must consider the submissions made to it. In Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs, Gummow and Callinan JJ said that a failure to respond ‘to a substantial, clearly articulated argument relying upon established facts’ was a failure to afford natural justice. This was adopted by a unanimous High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia.”
The relevant principles are set out in paragraph 34 of those reasons. I will not repeat them here save to observe that while an administrative body should not have its reasons scrutinised “with an eye keenly attuned to error,” an inference can be drawn that there has been a failure to consider an issue where there is a failure to expressly deal with that issue in the reasons. The respondent did not expressly deal with any of the matters raised in the applicant’s submissions.
I turn now to the question of balance of convenience, bearing in mind what I have already said. The material demonstrates that a suspension of the licence will bring about the closure of the brothel with the inevitable loss of income both to the licensee and the workers. That, as Mr Brennan observed, is an inevitable consequence of a suspension.
There is, in this case, more than that. The applicant is a guarantor of the lease of the premises and could become liable for the satisfaction of the rent. Further, there is in existence a contract by a company of which the applicant is a director, to sell the business as a going concern. The contract is subject to and conditional upon the sale of the business as a going concern. The contract is subject to the other party obtaining a brothel licence within 150 days from the contract date. During that time the seller is required to keep the business open for trade. If the decision is not suspended, then the brothel will be forced to close, and a third party will be in breach of a contract of sale and exposed to possible litigation and loss.
Another relevant consideration is the length of any stay of a decision. The applicant and the respondent are agreed upon a set of directions which would have the substantive application for judicial review heard on 4 February 2022. That would mean that there would be a hearing no later than two months after the suspension was to take effect.
I am satisfied that the applicant has demonstrated a sufficiently strong case and that the balance of convenience favours it for a stay or suspension of the operation of the decision to be granted and for the directions agreed by the parties to be made.