Creasy & Ors v Hot Holdings Pty Ltd & Anor [2000] WASCA 206 - WASCA 2000 case summary — Zoe

[60]

"The remaining submission was that the order made by the Court under s 27 granting a conditional licence was not denied legal effect by the failure to produce any agreement between the applicant and the lessor. The submission raises a question of a type which is frequently encountered. The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. The numerous decisions in this field have been recently reviewed by this Court: Attorney-General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [[1977] 2 NSWLR 955] and Hatton v Beaumont [[1977] 2 NSWLR 211]. The position of directory enactments has also been expounded in an authoritative but obiter way in Victoria v The Commonwealth [(1975) [1975] HCA 39; 134 CLR 81]. From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklin Stores Pty Ltd case [at 963 et seq]. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont [at 220]. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth [at 179, 180]. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty Ltd case [at 965 et seq]. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth [at 118, 162, 179 and 180]."

[126]

75 The question arises whether the material is relevant to the bias issue which, in large measure, depends upon whether it is material which could give support to the appellant applicants' claim of apprehended bias. Mr Phillips swore an affidavit on 15 November 1999 which was read to this Court. Relevantly he said that the warden's decision in respect of the ballot delivered on 8 January 1998 and the procedure to be followed regarding allowing the parties to make submissions to the Minister was discussed on several occasions by Mr Burton, and himself. Mr Phillips directed Mr Burton to ensure that proper procedures were followed and to obtain legal advice on all contentious issues. Mr Phillips said that he asked Mr Burton to assume responsibility for the final minute to the Minister but said that he would assist by reviewing drafts to ensure that the final product addressed all relevant issues. In the initial discussions with Mr Burton, they agreed that, as a starting point, Mr Miasi be requested to arrange the preparation of a draft minute. They agreed that this minute should be from the Director General to the Minister supporting the recommendation made by the warden on the basis that there was no compelling reason not to follow that recommendation. Both Mr Burton and he considered that the warden would have carefully considered the various court rulings and the merits of the competing applications that had been made on the submissions made to him by the competing parties. Mr Phillips reviewed and amended the draft minute that was prepared and this was further reviewed and amended by Mr Burton before the final minute dated 30 June 1998. Mr Phillips did not alter the original recommendation agreed to by Mr Burton and himself. He was not present at two meetings between Mr Burton and the Minister on 16 and 17 July 1998 when the minute dated 30 June 1998 was discussed. Mr Phillips swore that Mr Miasi did not influence his decision to support the warden's recommendation. He said Mr Miasi did not express a view as the merits of the competing applications.

Parties

Applicant/Plaintiff:

# Creasy & Ors

Respondent/Defendant:

Hot Holdings Pty Ltd & Anor \[2000\] WASCA 206

Legislation Cited (2)

Food and Drugs Act 1938

Services Act 1992

Cases Cited (60)

Creasy & Ors v Hot Holdings Pty Ltd & Anor [2000] WASCA 206 (4 August 2000)

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Crouch v Commissioner for Railways (Queensland) [1985] HCA 69; (1985) 159 CLR 22

Director of Public Works v Ho Po Sang [1961] AC 901

Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd [1993] FCA 342; (1993) 43 FCR 510

Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Nicholas v R [1998] HCA 9; (1988) 151 ALR 312

Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 72 ALJR 841

Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271

Re GN Calder Esq SM; ex parte St Barbara Mines Ltd [1999] WASCA 25

Re Plutonic Operations Ltd; ex parte Roberts [1999] WASCA 133

Toowoomba Foundry Pty Ltd v Commonwealth [1945] HCA 15; (1945) 71 CLR 545

Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195

Waddington v Silver Chain Nursing Association [1998] WASCA 331; (1998) 20 WAR 269

6 Hot Holdings relied on issue estoppel and what has come to be known as Anshun estoppel (Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; (1981) 147 CLR 589) in answer to the claim that its application was invalid for non-compliance with s 118 of the Act.

(1998) 19 WAR 145

(1991) 178 CLR 134

(1994) 54 FCR 350

(1993) 43 FCR 510

(1986) 72 ALR 23

(1992) 8 WAR 111

(1986) 162 CLR 24

(1988) 151 ALR 312

(1948) 76 CLR 632

(1994) 84 LGERA 113

(1991) 5 WAR 295

(1989) 98 FLR 402

(1994) 13 WAR 407

(1939) 62 CLR 464

(1995) 184 CLR 163

(1985) 159 CLR 22

(1980) 1 NSWLR 404

(1996) 65 IR 40

(1984) 157 CLR 124

(1998) 72 ALJR 841

(1968) 118 CLR 271

(1994) 181 CLR 251

(1994) 14 WAR 120

(1945) 71 CLR 545

(1981) 147 CLR 589

(1996) 185 CLR 149

(1957) 96 CLR 261

(1998) 194 CLR 355

(1960) 105 CLR 214

(1988) 164 CLR 502

(1994) 181 CLR 41

(1998) 20 WAR 269

(1996) 16 WAR 428

(1960) 105 CLR 188

(1988) 164 CLR 234

(2000) 74 ALJR 419

(1950) 81 CLR 446

(1978) 52 ALJR 599

(1999) 46 NSWLR 168

(1983) 151 CLR 288

(1991) 25 NSWLR 224

(1977) 180 CLR 295

Creasy & Ors v Hot Holdings Pty Ltd & Anor [2000] WASCA 206

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (176 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (60)

Creasy & Ors v Hot Holdings Pty Ltd & Anor [2000] WASCA 206 (4 August 2000)