Plaintiff v Defendant

1 The plaintiff is an employee of a family business that operates kiosks and cafés at the Bellarine Aquatic and Sports Centre (the 'Bellarine Centre') and the Leisurelink Aquatic and Recreation Centre (the 'Leisurelink Centre'). The Bellarine and Leisurelink Centres are owned and operated by the defendant council (the 'Council').

2 On 28 April 2011, the plaintiff appeared in the Magistrates' Court of Victoria at Geelong on charges of behaving in an offensive manner in a public place. The offences were said to have taken place at the Bellarine Centre between 1 October 2010 and 3 November 2010.[1] It was alleged that the plaintiff had taken approximately 15 photographs of adult women on his mobile telephone whilst working at the kiosk (the 'offensive conduct'). The Magistrates' Court found the offensive conduct proven, but granted a diversion order and further ordered that the mobile telephone in question be forfeited. On 27 May 2011, the plaintiff was discharged without a finding of guilt, having completed the diversion program.

3 The plaintiff apparently continued to work at the Bellarine and Leisurelink Centres throughout this time and subsequently. However, on 14 August 2011, a female patron recognised the plaintiff at the Bellarine Centre and informed management that the plaintiff had faced charges in the Magistrates' Court arising from the offensive conduct. The patron said that she would no longer attend the Bellarine Centre if the plaintiff continued to be allowed onto the premises and that she would tell everyone she knew about the offensive conduct. The patron refused to provide her name or contact details to the Centre management. As a result, Council officers made inquiries of the Ocean Grove Police and at the Geelong Magistrates' Court and the existence of the charges was confirmed.

4 The following day, 15 August 2011, an employee at the Bellarine Centre was approached by a number of other mothers at a local kindergarten who said that they would no longer attend the Bellarine Centre if the plaintiff continued to work there.

5 On 16 August 2011, management of the Bellarine Centre met with the plaintiff. The plaintiff admitted the charges for the offensive conduct but stated that the matter had been resolved. At the conclusion of the meeting, the plaintiff was informed that, due to the seriousness of the offensive conduct and prospect of further community reaction and complaint, the plaintiff would be 'suspended' from the Bellarine and the Leisurelink Centres pending further investigation. A letter was sent to the plaintiff later that day confirming the suspension and the investigation.

6 The plaintiff has not attended his place of employment at either the Bellarine Centre or the Leisurelink Centre since that time.

7 On 24 August 2011, apparently as part of its investigation, the Council wrote to the plaintiff seeking his consent to Victoria Police releasing the information held by it in relation to the charges. As the plaintiff did not give consent, the Council made a request under the Freedom of Information Act 1982 ('FOI Act') for all documents held by Victoria Police in relation to charges against the plaintiff.

8 Between 24 August and 6 October 2011, letters were exchanged between the Council and the plaintiff's solicitors regarding the investigation and suspension. The letters from the plaintiff's solicitor to the Council expressed (in strong terms) dissatisfaction with the process embarked upon by the Council, but did not challenge its lawfulness. It would be fair to say that the plaintiff's solicitors did not cooperate with the Council's investigation.

9 On 1 December 2011, the Council wrote to the plaintiff advising him that, having reviewed the information provided by Victoria Police under the FOI Act, the Council had determined that the plaintiff had breached cl 12.2 and cl 12.5 of the Greater Geelong City Council General Local Law 2005 (the 'Local Law') and that a two year 'ban' from the Bellarine and Leisurelink Centres was appropriate in the circumstances (the 'First Decision'). The ban was purportedly imposed pursuant to cl 10.1 of the Local Law, which empowered the Council to restrict access to 'Municipal Buildings'. The Council's letter stated that at the end of the two year ban (on 1 December 2013), the plaintiff could request the Council to review the determination. The Council advised that it would then either extend the ban or allow access to the Centres and that the plaintiff would have an opportunity to provide written submissions in the review process.

10 I observe that the plaintiff was not given any opportunity to be heard in relation to the ban before it was imposed, although nothing has been made of this by the plaintiff in this proceeding.

11 However, almost a year later, on 16 November 2012, the plaintiff's solicitor wrote to the Council's Chief Executive Officer (the 'CEO') requesting a review of the First Decision by the 'Internal Ombudsman' pursuant to the provisions of the Local Law. On 21 December 2012, a Council officer designated as the Internal Ombudsman confirmed that an internal review of the First Decision would be conducted and proposed that, following his investigation, a meeting be held with the plaintiff 'so that he may be afforded the opportunity to discuss this matter'.

12 On 12 February 2013, the plaintiff and his solicitor attended a meeting with Council officers (not including the Internal Ombudsman or the CEO). At the conclusion of this meeting, the plaintiff was informed that the CEO would be briefed on the meeting and that a decision would be made.

13 On 15 February 2013, the Council wrote to the plaintiff's solicitor advising that the CEO had requested a detailed briefing on the matter. Council minutes reveal that a meeting of Council officers, including the CEO, was held on 8 March 2013.

14 On 13 March 2013, the Council informed the plaintiff that, after consultation with the CEO, it had been determined that the two year ban imposed on 1 December 2011 would remain in place. At the end of the ban, if asked to do so by the plaintiff, the Council would review its determination and either extend the ban or allow access to the Bellarine and Leisurelink Centres (the 'Second Decision').

15 The ban was purportedly imposed pursuant to the provisions of the Local Law.

16 The Local Law was made pursuant to s 111 of the Local Government Act 1989 (Vic). Its objectives include to promote a physical and social environment in which residents can enjoy a quality of life that meets the general expectations of the community and to prevent and suppress nuisances which may adversely affect the enjoyment of life or the health, safety or welfare of persons living within the municipal district.

17 Part 2 of the Local Law concerns the use of Council land. It contains provisions applying to 'Municipal Buildings', including the Bellarine and Leisurelink Centres. The Local Law sets out what Council may do and what may or may not be done by other persons in or in respect of Municipal Buildings as follows:

What Council may do

10. Council may:

10.1 restrict access to a Municipal Building or part of it;

10.2 close any Municipal Building or part of it to the public;

10.3 establish conditions of entry to a Municipal Building;

10.4 set and collect fees or charges for admission to or the hire or use of a Municipal Building or part of it;

10.5 set and collect fees or charges for the hire or use of any Council property in connection with a Municipal Building; and

10.6 authorise a person to do any one or more of the things described in clause 10.1-10.5 (inclusive).

Behaviour in Municipal Buildings

12. A person must not:

12.1 commit any nuisance in a Municipal Building;

12.2 interfere with another person's use and enjoyment of a Municipal Building_;_

...

12.5 behave in an indecent, offensive, insulting or riotous manner in a Municipal Building;

...

Access to Municipal Buildings

13.1 determine the hours when any Municipal Building will be open to the public;

13.2 restrict access to a Municipal Place or part of a Municipal Building;

13.3 close any Municipal Building or part of a Municipal Building to the public;

...

1. A person must not, without the consent of Council or an authorised officer:

...

17.4 remain in a Municipal Building after being directed to leave by an authorised officer;

17.5 enter a Municipal Building, after having been directed to leave that Municipal Building by an authorised officer, until he or she is granted written permission to do so by Council or an authorised officer.

18 The Local Law provides for penalties to be imposed in respect of the conduct prohibited by cls 12 and 17.

19 Part 9 of the Local Law is concerned with administration and enforcement. The preamble to Part 9 states that it aims to supplement the preceding provisions by explaining how the Local Law may be administered and enforced. It includes provisions relating to impounding, notices to comply, permits, directions, offences, and infringement notices.

20 Part 9 contains cls 162 and 163. Clause 162 provides that a person who contravenes or fails to comply with any provision under the Local Law is guilty of an offence and is liable to a penalty. Clause 163 provides that as an alternative to prosecution for an offence, a person may be served with an infringement notice. Part 9 then contains the following provisions:

Requirement to Act Fairly and Reasonably

176. In exercising any power under this Local Law, Council and an officer must act fairly and reasonably and in proportion to the nature and extent of the breach of this Local Law.

Review Rights

178. If any person is aggrieved by the fairness or reasonableness any action taken by Council or an authorised officer under this Local Law, he or she may request Council's Internal Ombudsman (or, in the absence of the Internal Ombudsman, Council's Chief Executive Officer) to review the fairness or reasonableness of the action taken.

21 In my view, there is a question as to whether the power in cl 10.1 of the Local Law authorises the Council to prevent a person who is not an invitee but a person who attends a Municipal Building as their place of work, from attending his or her workplace. The Council has purported to deal with what is essentially a problem with one of its contractors by way of a Local Law allowing it to regulate access to Municipal Buildings. The proper course may have been for the Council to deal with the contractor in relation to the plaintiff's conduct and/or to review its contractual arrangements with the plaintiff's employer. Moreover, given that the Local Law itself provides for a penalty to be imposed for any breach of the provisions governing behaviour in Municipal Buildings in cl 12, there is also a question as to whether a 'ban' or 'suspension' may be imposed in lieu of that penalty. This in turn raises the question as to whether the provisions imposing the obligation on the Council to act fairly and reasonably and conferring a right of review are applicable to decisions that do not involve administration and enforcement under Part 9.

22 However, the plaintiff did not seek to challenge the conduct or decisions of the Council on this basis, and I am content to proceed on the basis that cl 10.1 (or alternatively cl 17.5) authorised the Council to ban the plaintiff from entering the leisure centres for breaches of cl 12, and that the exercise of that power carried with it the obligation to act fairly, reasonably and proportionately under cl 176, and could be the subject of an internal review under cl 178 of the Local Law. It will be necessary, however, to bear in mind that the plaintiff was denied access to his place of work and not just to the use and enjoyment of the leisure facilities.

23 The plaintiff has filed an originating motion[2] seeking relief pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. He seeks an order quashing the Internal Ombudsman's decision of 13 March 2013.

24 The plaintiff's grounds of review are as follows:

The penalty imposed on the Plaintiff by the Defendant by the making of the Ombudsman's Decision is wrong in law as it was and is, in the circumstances:

(a) not in proportion to the nature and the extent of the Breach;

(b) made in breach of the Local Law 176 in that the Defendant:

(i) failed to act fairly and reasonably;

(ii) failed to act in proportion to the nature and extent of the Breach.

(c) manifestly excessive.

25 In oral submissions, the plaintiff alleged error on the basis that the Council failed to act fairly and reasonably and in proportion to the nature and extent of the breach by imposing what was, in effect, an open-ended ban on the plaintiff attending the leisure facilities. This was also alleged to involve Wednesbury unreasonableness, in that, in exercising its power to restrict access to the Centres for an open-ended period, the Council made a decision that no reasonable decision-maker could have made.[3]

26 The decision that is the subject of review is described as the 'Ombudsman's Decision,' which is a reference to the decision made on 13 March 2013 that is set out in the letter from the Council to the plaintiff of that date. The Council submits that the only decision made by the Internal Ombudsman was as described in the letter of 21 December 2012, namely that a recommendation be made to the CEO to review the First Decision, and that a meeting be convened between the plaintiff and officers of the Council (not including the Ombudsman).

27 It is plain that the plaintiff seeks judicial review of the decision contained in the letter from the Council dated 13 March 2013 not to lift the ban and, in effect, to confirm the ban in the terms in which it was imposed on 1 December 2011. The Second Decision confirmed that the ban would endure until at least 1 December 2013, when, on request by the plaintiff, the Council would consider whether to lift the ban or extend it.

28 Accordingly, the Court will review the Second Decision.[4] It will do so on the ground that, in making the Second Decision, the Council did not act in accordance with the requirements of cl 176 of the Local Law in that it did not act fairly and reasonably and in proportion to the nature and extent of the breach of the Local Law, and on the ground that the Second Decision was unreasonable in the Wednesbury sense.

29 The Second Decision was communicated to the plaintiff in a letter from Mr Malcolm Kuhn, the manager of Leisure Services for the Council, dated 13 March 2013. That letter reads as follows:

Re: George Topouzakis - Review of Decision - Exclusion from Bellarine Aquatic and Sports Centre and Leisurelink Aquatic and Recreation Centre.

I refer to the abovementioned matter and confirm an outcome has been finalised in consultation with the Chief Executive Officer.

It has been determined that the original 2 year exclusion ban imposed on 1 December 2011 will remain. The ban extends to 1 December 2013 as previously advised.

At the end of this period and at Mr Topouzakis (sic) request, Council will review this determination and either extend the ban or allow access to the facilities.

30 No request for reasons for decision has been made to the Council under s 8 of the Administrative Law Act 1978 (Vic). However, the Council says that its reasons for the Second Decision are contained in the letter advising the plaintiff of the First Decision. This letter, dated 1 December 2011, contains the following explanation for the First Decision:

The taking of photographic and video images of patrons (in this instance, female patrons) at any Municipal Building without the consent of such patrons is unacceptable. All patrons have the right of use and enjoyment of Council facilities without interference from another person.

Notwithstanding the Police charges made against you and the subsequent outcome, the behaviour exhibited by you is a breach of Council's Local Law 2005. Clause 12 of the Local Law sets out the standard of behaviour required for entrance of Municipal Buildings. The above facilities are included in the definition of 'Municipal Building' in clause 6 of the Local Law. Pursuant to clause 10.1, Council may restrict access to a Municipal Building or any part of it. Council is now exercising that right in the form of the two year ban on the basis that the behaviour exhibited by you is a breach of clause 12.2 (in that you have interfered with another person's use and enjoyment of a Municipal Building) and clause 12.5 of the Local Law (in that you have behaved in an indecent, offensive, insulting and riotous manner in a Municipal Building).

31 In explaining its decision to ban the plaintiff from the facilities and confirm the ban on internal review, the Council also relies on affidavits of Mr Dean Frost, General Manager of Projects, Recreation and Central Geelong, Ms Sally Aitken, Centre Manager of the Bellarine Centre, and Mr Malcolm Kuhn, Manager of Leisure Services for the Council, all made on 2 July 2013.

32 Mr Frost's affidavit responds to the plaintiff's affidavit, setting out in broad terms how the plaintiff's conduct came to the attention of the Council, the Council's investigation and, in particular, events following the plaintiff's request for internal review of the First Decision and the meeting held on 20 February 2013 with the plaintiff and his solicitor, which resulted in the confirmation of the First Decision by the Second Decision. Mr Frost confirms that the decision set out in the letter of 13 March 2013 (the Second Decision) is identical to the decision set out in the defendant's letter to the plaintiff dated 1 December 2011 (the First Decision) and explains that the letter dated 1 December 2011 therefore sets out the reasons for the Second Decision.

33 Ms Aitken's affidavit describes the circumstances in which it came to her attention that complaints had been made about the plaintiff's conduct and that the plaintiff had been charged with offensive behaviour. She describes her meeting with the plaintiff on 16 August 2011 and the ensuing investigation, including the request to the plaintiff to consent to the Council accessing information held by Victoria Police, the ensuing correspondence between the plaintiff's solicitors and the Council and, finally, the letter dated 6 October 2011 from the Council to the plaintiff's solicitors noting that the plaintiff had information that the Council was seeking and had chosen not to volunteer that information to the Council.

34 Mr Kuhn's affidavit describes the meeting with the plaintiff and his solicitor held on 12 February 2013. Mr Kuhn records the plaintiff's solicitor demanding that the plaintiff be reinstated immediately, alleging a denial of procedural fairness and stating in strong terms that the Council's decision was unreasonable and unfair. Mr Kuhn also deposes that the plaintiff himself expressed frustration at the Council's handling of the matter and stated that he had 'served enough time' for the incident and that it was unreasonable for the Council to impose such a 'strong penalty' in circumstances where the Magistrates' Court had made a diversion order. Mr Kuhn then deposes to his own view of the plaintiff's conduct at the meeting:

I consider that during the meeting the plaintiff behaved in a manner which demonstrated no insight into the seriousness of his behaviour and the impact that it had on female patrons of the BASC (the Bellarine Centre) and Leisurelink. He indicated a lack of remorse for his actions throughout the meeting.

35 And further, in Mr Frost's affidavit, the subsequent meeting with the CEO is described as follows:

The outcome of the meeting was to confirm the original decision to impose a two year ban. The issues of concern which were raised at the meeting were that the plaintiff had been charged with an offence of behaving in an offensive manner on the defendant's property, that he had admitted his behaviour, but had been uncooperative with the Council's investigation and had refused to provide any full and frank disclosure of his behaviour. The plaintiff did not show any remorse about his behaviour and considered that as the court had dealt with the matter by way of diversion that should be the end of the matter. The plaintiff appeared to have little insight into the distress his behaviour had caused to female patrons. I remain concerned that the plaintiff had no insight into the serious nature of his behaviour. I was also concerned that the plaintiff had not expressed any regret about his behaviour and gave the impression that he had not really done anything wrong. I was concerned about the risk of recurrence of the plaintiff's behaviour and the damage that could be done to the defendant's business at the Centres. I was also concerned that female patrons of the BASC [Bellarine Centre] had told staff they would stop coming to the BASC if the plaintiff accessed the BASC. The meeting also discussed the internal ombudsman's recommendation to review the ban that had been imposed by my letter of 1 December 2011 and the chief executive officer decided in all the circumstances the original ban should remain and that Malcolm Kuhn should write to the plaintiff's solicitor to inform him of the chief executive officer's decision.

36 The Council, through its officers, Mr Kuhn and Mr Frost, has therefore expressed concern about the plaintiff's refusal to provide 'full and frank disclosure' and his lack of insight into the seriousness of his behaviour and lack of remorse or regret. It has expressed concern about a recurrence of the offensive conduct and damage to its business as a result of female patrons boycotting the Bellarine Centre.

37 In Minister for Immigration and Border Protection v Singh,[5] the Full Court of the Federal Court of Australia, when considering whether there was 'intelligible justification' for a decision, stated that any such justification must lie within the reasons the decision-maker gave for the exercise of the power - at least where a discretionary power is involved. This is because it is the decision-maker in whom the Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform the view of the supervisory court.[6]

38 In East Melbourne Group Inc v Minister for Planning,[7] the Court of Appeal held that a decision-maker should ordinarily be bound by the reasons which the decision-maker gave for the decision in question. The right of persons affected to seek judicial review of a decision would be severely diminished if, a stated reason being indefensible, the decision-maker were then permitted to defend the decision on the basis of matters which were not mentioned in the statement of reasons but which were claimed to be in fact part of the reasons.[8] The general principle is that a court, when considering the lawfulness of a decision, may admit evidence in quite limited circumstances so as to elucidate, but not fundamentally collide with, the reasons stated by the decision-maker.[9]

39 In this case, the Council's letters to the plaintiff advising him of the First and Second Decisions do little more than to refer to the plaintiff's unacceptable behaviour and the right of patrons to use and enjoy Council facilities without interference from other persons. The Council did not give the person affected by its decision to impose the ban, the plaintiff, any real explanation for its imposition other than that the plaintiff did what he admitted to having done and that this conduct constituted a breach of the relevant paragraphs of cl 12 of the Local Law. The letter dated 13 March 2013 provides no explanation for the content of the Second Decision. If the relevant parts of the letter of 1 December 2011 express the reasons for the Second Decision,[10] they do little to explain why it was thought necessary to ban the plaintiff from the leisure facilities (as opposed to taking other steps, such as requiring him to hand in his phone or to be more closely supervised by his employer) or why the restriction on access to the leisure facilities took to the form of a two year 'ban' extendable at the discretion of the Council.

40 The explanations for the Council's decision given in the Council's affidavit material are more fulsome. In my view, they do not collide with the substance of the letters of 1 December 2011 and 13 March 2013. To use the formulation in Singh, the affidavits purport to explain why the choice to make the Second Decision was made as it was. Given the scant explanation for the ban in the Council's letters to the plaintiff, the Court will have regard to the affidavit material, which sheds light on the cogency (or otherwise) of the Council's conduct. The plaintiff is not prejudiced by the Court having regard to the explanations in the affidavit material - to the contrary, it shows the Council to have been motivated by a variety of factors, including what I consider to be an irrelevant consideration for the exercise of discretion under cl 10.1 of the Local Law, namely, its concern that some patrons would become disgruntled if the plaintiff were not excluded from the facilities.

41 The plaintiff submits that in the exercise of its power to restrict access to the Bellarine and Leisurelink Centres, the Council did not act fairly and reasonably, and did not act in proportion to the nature and extent of the plaintiff's breach of the Local Law, with the result that, in the exercise of the power, the Council failed to satisfy the requirements for its exercise and acted unlawfully.

42 The plaintiff submits that the ban is, in reality, a ban for an indefinite period because, at the end of the two year period of restriction, the Council will review the ban only if it receives a request from the plaintiff to do so and, having conducted the review, may extend the period of restriction without any time limit on the further extension. There is no time limit on the period of review and there are no procedures, guidelines or principles which the Council must follow or apply when conducting the review.

43 According to the plaintiff, the obligation to act reasonably and fairly and in proportion to the nature and extent of the breach required the Council to consider the nature and extent of the plaintiff's behaviour in the context of other similar conduct. It required a process of evaluation and comparative analysis with other cases of behaviour of the relevant kind for the purpose of making an informed decision that was fair, reasonable and proportionate. The plaintiff submits that there is no evidence that the Council undertook such a process, or that it exercised any evaluative judgment, considered any comparative cases of breaches of the Local Law or otherwise, or took any other steps to establish the proportionality of what the plaintiff describes as 'the punishment' to the nature and extent of the breach of the Local Law.

44 The plaintiff submits this task should have been informed by what occurred in the Magistrates' Court. The Magistrates' Court granted a diversion order and adjourned the hearing in order to enable the plaintiff to participate in and complete the diversion program, a course of action to which the prosecution consented. While it was within the power of the Magistrates' Court to impose a special condition that the plaintiff not attend the leisure centres for a period of time, the Magistrates' Court did not do so. This, so the plaintiff contends, shows the Council to have acted disproportionately in imposing the ban.

45 As to whether the Council acted 'fairly and reasonably' in imposing the ban, the plaintiff submits that as a breach of cl 12.2 or cl 12.5 constituted an offence for which the plaintiff was liable to punishment, cl 176 must be construed in a criminal or quasi criminal context. The meaning of the phrase 'fairly and reasonably' is informed by the provisions of the Sentencing Act 1991 (Vic), and the Council must act fairly and reasonably having regard to the need to punish the plaintiff to an extent that is just in all the circumstances, to deter the plaintiff and other persons from committing breaches of the same or similar character, to manifest denunciation of the type of conduct in which the plaintiff engaged and to protect the community from the plaintiff.

46 The plaintiff argues that the proportionality of the Council's response to the breach must also be viewed in this context. He submits that it is a fundamental principle of sentencing that only in very exceptional cases should an indefinite period be imposed in the exercise of the sentencing discretion.

47 As to the ground of Wednesbury unreasonableness, the plaintiff submits that no reasonable decision maker could lawfully impose a ban in the terms and breadth of the ban that was imposed, and that, as a consequence, the Court ought to find that the Council came to a decision that was so unreasonable that no authority acting reasonably could have come to it.

48 For its part, the Council argues that the submissions of the plaintiff are based on an incorrect assumption that the Council imposed a penalty on the plaintiff for an offence committed by the plaintiff by his breach of the Local Law. The Council says that it did not seek to impose a penalty on the plaintiff, but merely sought to rely on the power in clause 10.1 of the Local Law, which is a broad power to restrict access by a person to a Municipal Building. The exercise of the sentencing discretion by the Magistrates' Court is quite different from the exercise of discretion by the Council and its officers in administering the Local Law when regulating who is entitled to enter upon land owned and occupied by the Council or in the exercise of the Council's common law right to regulate the entry of persons on its land. The provisions of the Sentencing Act 1991 (Vic) are therefore not relevant to the Council's conduct in regulating who may enter onto its land, whether under the Local Law or in the exercise of its common law rights.

49 The Council submits that the plaintiff has misconceived the nature and effect of the First and Second Decisions because they do not involve the imposition of a penalty on the plaintiff for an offence committed under the Local Law, but the exercise of discretion by the Council and its officers when regulating who is entitled to enter upon land owned and occupied by the Council under the Local Law.

50 In making the First Decision, the Council says it had regard to:

(a) complaints from the patrons of the Bellarine Centre;

(b) the investigation carried out by management of the Bellarine Centre;

(c) the fact that the plaintiff was charged with the offence of behaving in an offensive manner on the Council's property and admitted such behaviour to Council officers;

(d) the content of information received from Victoria Police;

(e) the information provided by the plaintiff and his solicitor at the meeting held on 12 February 2013 at which Mr Kuhn was present;

(f) the lack of cooperation by the plaintiff in the investigation process;

(g) the lack of insight by the plaintiff into the effect his behaviour had on female patrons;

(h) the failure of the plaintiff to express any regret about his behaviour following concerns about the risk of a recurrence of the plaintiff's behaviour in circumstances where he failed to acknowledge the behaviour;

(i) the damage that could be done to the Council's business at the Centres;

(j) the plaintiff's failure to provide full and frank disclosure of his behaviour.

51 In this regard, the Council also refers to the exchange of correspondence between the plaintiff's solicitor and the Council in 2011, in which the plaintiff's solicitor complained about the Council's investigation, describing the matter as 'a storm in a teacup' and the Council's investigation as 'nothing more than a fishing expedition ... to justify an unlawful suspension'. The plaintiff's solicitor also referred to a vendetta being pursued against the plaintiff based on unsubstantiated allegations from an anonymous source. The letters contain threats to commence proceedings against the Council.

52 As to the Second Decision, the Council submits that in all of the circumstances it was fair and reasonable having regard to the fact that:

(a) the plaintiff engaged in offensive behaviour on Council property;

(b) the Council has promulgated a Local Law to regulate behaviour on its property;

(c) the plaintiff breached the Council's conditions of entry that are on display at the entry to the Centres and within the Centres;

(d) patrons attending Council property complained about the plaintiff's behaviour;

(e) patrons attending Council property indicated they would not attend the Bellarine Centre if the plaintiff was present;

(f) Victoria Police have investigated the plaintiff's behaviour and charged him with offensive behaviour;

(g) the plaintiff has admitted that he was charged with offensive behaviour;

(h) the plaintiff has refused to cooperate with the Council and to provide information about the precise nature of the behaviour;

(i) the plaintiff has not provided the Council with any reasonable explanation of his behaviour;

(j) the plaintiff has failed to provide full and frank disclosure to the Council, which is a proper matter for the Council to take into account when deciding to impose the ban on the plaintiff;

(k) the Council is entitled to take a cautious approach regarding the nature of the plaintiff's conduct and its impact upon patrons attending its facilities;

(l) the plaintiff has not only failed to provide information regarding his conduct, he has engaged solicitors to correspond with the Council in a threatening and aggressive manner;

(m) despite Council officers inviting the plaintiff's solicitor to engage in dialogue concerning the investigation, the plaintiff's solicitor refused to do so and did not further correspond with the Council after the first decision;

(n) the Council provided the plaintiff and his solicitors with an opportunity to make submissions in relation to the First Decision in the meeting held on 12 February 2013;

(o) the Council had proper regard to the matters which are set out in the affidavit of Mr Frost in which Mr Frost describes the plaintiff's conduct at the meeting.

53 I accept the Council's submission that the lawfulness of the Second Decision is to be determined on the basis that it involves the exercise of an administrative discretion to restrict access to Municipal Buildings under the Local Law. It is not to be regarded as involving the imposition of a penalty.

54 The plaintiff seeks to impugn the Second Decision on what can be broadly described as 'reasonableness' grounds. The reasonableness of the Second Decision is raised both in the context of cl 176 of the Local Law and because it is alleged that the Second Decision was 'unreasonable' in the Wednesbury sense. The plaintiff asks the Court to determine whether the administrative discretion to restrict access to Municipal Buildings in cl 10.1 of the Local Law was exercised reasonably and proportionately as required by cl 176 of the Local Law, and whether the decision to impose the ban was so unreasonable that no reasonable decision-maker could have made it.

55 In answering these questions, it must be borne steadily in mind that the Court is concerned with the lawfulness of the Council's decision, not with whether it was the correct and preferable decision.

56 The distinction between review on the merits and a review of the legality of a decision is fundamental to administrative law.[11] The Court does not engage in a review of the merits of administrative decisions, as the power to engage in administrative action resides with the repository of the power alone.[12] The Court's jurisdiction when conducting judicial review is to determine whether the decision taken was within power; the Court has no jurisdiction 'simply to cure administrative injustice or error'.[13] The Court is therefore concerned with whether the Second Decision was made within the boundaries of the discretion conferred by the Local Law to restrict access to Municipal Buildings. A decision made within those boundaries cannot be impugned.[14]

57 In Craig v The State of South Australia,[15] the High Court confirmed that an administrative decision-maker lacks authority to make a decision otherwise than in accordance with the law. If an administrative decision-maker makes an error of law which causes it to identify the wrong issue, to ask itself the wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the decision-maker's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which will invalidate any order or decision which reflects it.[16]

58 While Wednesbury unreasonableness gives rise to jurisdictional error, there is a question as to whether any failure to comply with the obligation in cl 176 of the Local Law to act fairly and reasonably and in proportion to the breach would also give rise to jurisdictional error.

59 In Minister for Immigration and Citizenship v Li,[17] the High Court of Australia considered whether a decision by the Migration Review Tribunal could be set aside because the Tribunal had acted unreasonably in refusing to grant an adjournment and in hearing and determining the matter before the respondent was able to obtain a necessary skills assessment. Chief Justice French considered whether provisions of the Migration Act 1958 (Cth) imposed statutory requirements capable of supporting substantive grounds of review for jurisdictional error. Section 353(1) required the Migration Review Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick; s 353(2) provided that the Migration Review Tribunal, in reviewing a decision, was not bound by technicalities, legal forms or rules of evidence and was required to act according to substantial justice and the merits of the case. The Chief Justice held that the provision had to be understood in its statutory context[18] and that, so understood, it had a facultative, rather than restrictive, purpose. It described the general nature of review proceedings and required the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that had sometimes been adopted by quasi-judicial proceedings. Accordingly, the direction in the provision did not give rise to grounds for judicial review.[19]

60 Having regard to its statutory context, I consider that cl 176 of the Local Law is restrictive and not merely facultative. Clause 176 describes the way in which the Council is obliged to exercise its powers of administration and enforcement under the Local Law. Those powers are broad and are capable of having a significant impact on lives and businesses and an express requirement has been imposed that the Council exercise its powers of administration and enforcement 'fairly and reasonably' and 'in proportion to the nature and extent of the breach'. Such a requirement is intended to limit the way in which the Council exercises its discretionary powers in response to breaches of the Local Law and therefore to be restrictive. In my view, therefore, cl 176 is expressed in terms supporting a claim for jurisdictional error based on non-observance of the requirements that it imposes. Although the requirement for 'fairness' is vague, a failure to act reasonably or proportionately in respect of a breach of the Local Law is something that the legislature intended be amenable to supervision by way of judicial review.

61 Hence, a failure by the Council to act in compliance with its own laws, that is, to observe the requirement in cl 176 of the Local Law to act 'fairly and reasonably' and 'in proportion to the nature and extent of the breach' in respect of the alleged breaches of cl 12.2 and cl 12.5, would give rise to jurisdictional error. The lawfulness of the Council's exercise of power under cl 10.1 would be affected by it not doing what the law required it to do in the exercise of that power, that is, by failing to exercise the power in a manner that was both reasonable and proportionate.

62 The bar to satisfy a statutory requirement of reasonableness is not usually set at the level of Wednesbury unreasonableness.[20] In Judicial Review of Administrative Action, the learned authors say, by way of example, that Acts authorising an authority to take 'reasonable' steps for some purpose, or requiring the subject to comply with 'reasonable' demands, 'might well be taken as permitting a more demanding judicial scrutiny, depending on the context'.[21] In Guiseppe v Registrar of Aboriginal Corporations,[22] the Full Court of the Federal Court of Australia held that the reasonableness of a period specified in a notice calling on an Aboriginal corporation to show cause why an administrator should not be appointed was to be objectively determined by the court. Justices Gyles and Edmonds said:

The question of reasonableness of the period was a question of fact for the primary Judge, subject to such limited role for respect for, or deference to, an administrative decision that is permitted according to the discussion by Gleeson CJ, Gummow, Kirby and Hayne JJ in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135.[23]

63 In that case, the court held that the objective circumstances required a finding that the period of notice given was not reasonable.

64 It is necessary to consider the standard of reasonableness imposed by cl 176 within the context of the Local Law as a whole and having regard to the subject-matter, scope and purpose of cl 10.1. Clause 10.1 enables the Council to regulate access to Municipal Buildings. Decisions about access to public buildings and facilities are commonly made and generally uncontroversial. The imposition of a long-term or open-ended 'ban' directed to one individual is, no doubt, more remarkable, particularly where it prevents the individual from accessing his or her workplace for an extended period of time. Nonetheless, having regard to the subject-matter, scope and purpose of cl 10.1, the Council must be taken to have been given considerable latitude in its exercise. In my view, the parameters for the lawful exercise of the power to restrict access to Municipal Buildings will be generous, notwithstanding the requirements of cl 176 of the Local Law.

65 Moreover, it is unlikely that the makers of the Local Law, in imposing requirements of reasonableness and proportionality, intended to open the gate for the Court, exercising its supervisory jurisdiction, to engage in a form of merits review of the plethora of every-day decisions made by the Council in respect of breaches of the Local Law.

66 For these reasons, the Court, when considering whether the Council's exercise of the power in cl 10.1 was lawful, that is, reasonable and proportionate, will be guided by the principles relating to the reasonableness and proportionality of administrative decision-making recently articulated by the High Court in respect of Wednesbury unreasonableness.[24]

67 In Li, the High Court restated the proposition that administrative discretions must be exercised according to the 'rules of reason'.[25] The rationality required by the rules of reason is an essential element of lawfulness in decision-making.[26] The limitation that, notwithstanding that a decision-maker has kept within the four corners of the matters it ought to consider it may come to a conclusion so unreasonable that no reasonable authority could ever have come to it, is derived from 'the framework of rationality' imposed by the statute.[27] The Chief Justice observed that a distinction may be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. His Honour further observed that a consideration of that distinction 'might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts'.[28] In this context, his Honour said:

... a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.[29]

68 In their joint judgment, Hayne, Keifel and Bell JJ confirmed that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably[30] and said that the legal standard of reasonableness is the standard indicated by the true construction of the statute.[31] As a result, the legal standard of Wednesbury unreasonableness should not be considered to be limited to what is in effect an irrational, if not bizarre, decision. The relevant aspect of Lord Greene MR's formulation of unreasonableness recognised that an inference of unreasonableness may in some cases be objectively drawn, even where a particular error in reasoning cannot be identified. The plurality referred[32] to the decision in Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation,[33] in which Gummow J identified three paradigm cases of unreasonableness thought to be consistent with the Wednesbury doctrine.[34] The third paradigm involved the application of a proportionality analysis by reference to the scope of the statutory power. In this context, the plurality said:

In the present case, regard might be had to the scope and purpose of the power to adjourn in section 363(1)(b), as connected with the purpose of section 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight - more weight than was reasonably necessary - to the fact that Ms Li had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached.[35]

69 The plurality further stated that the reasoning in House v The King[36] that an appellate court may infer that there has been a failure to properly exercise discretion 'if upon the facts [the result] is unreasonable or plainly unjust' might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Their Honours said:

Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[37]

70 For his part, Gageler J also referred to reasonableness as a condition of the exercise of a discretionary power.[38] Review by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process', but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'.[39] Like Hayne, Keifel and Bell JJ, Gageler J observed that guidance may be found in the close analogy between judicial review of administrative action and appellate review of judicial discretion.[40]

71 In this case, whether the Council's decision to impose the ban is 'reasonable' in the sense that there is evident and intelligible justification for it and whether the ban is proportionate to the breaches of the Local Law identified by the Council falls to be considered having regard to the explanations given by the Council for its decision to ban the plaintiff from the leisure facilities. This in turn draws attention to the form of the ban.

72 I accept the plaintiff's submission that the ban is, in effect, a ban for an indefinite period because, at the end of the two year period, the Council will review the ban only if it receives a request from the plaintiff to do so and, having conducted the review, it may extend the period of the ban. If the plaintiff does not ask for a review, the ban will go on forever. The same thing may occur if he does ask for a review, for there is no time limit on any extension of the ban. Moreover, there is no time limit on the period for the review itself and there are no procedures, guidelines or principles which the Council must follow or apply when conducting the review.

73 In the letters of 1 December 2011 and 13 March 2013, the Council explained its decision by reference to the plaintiff's unacceptable conduct and the right of patrons to enjoy Council facilities free from interference by others. In its written submissions, affidavit material and in argument, the Council stressed the plaintiff's lack of cooperation with its investigation, his lack of reasonable explanation for his conduct and his failure to provide 'full and frank disclosure' to the Council. The Council contended that the plaintiff was not prepared to be frank and open about the behaviour which led to him being charged and that he remained unwilling to provide information in his possession that would give the Council an understanding of the nature of the offence(s).

74 In this context, the Council informed the Court that it does not accept that the facts and circumstances which led to the plaintiff being charged were as the plaintiff described them, namely, that he took approximately 15 photographs of adult women on his mobile phone. The Council says that it still does not know exactly what the plaintiff did and submits that in these circumstances, it acted fairly and reasonably in coming to its decision to restrict the plaintiff's access to the leisure centres pursuant to cl 10.1of the Local Law.

75 The Council had access to the police file by reason of its release to the Council under the FOI Act. Some of that material would have been redacted for privacy reasons. Nonetheless, I do not accept that Council officers did not understand the nature and extent of the offensive conduct with which the plaintiff was charged. Apart from having access to the police file, the Council knew that the Magistrates' Court had seen fit to deal with the offensive conduct by way of a diversion order and that it had done so with the consent of the prosecution. In my view, the Council was in a position to assess the gravity of the offences with which the plaintiff had been charged and to formulate a reasonable and proportionate response to them in the light of the purpose for which its administration and enforcement powers are to be exercised.

76 On the basis of the affidavit material filed by the Council in the proceeding, it is tolerably clear that the Council's concern centred not on what it did not know about the offending conduct, but on what it perceived to be the plaintiff's high-handed response to the Council's inquiries and his lack of cooperation with the Council in its investigation, as well as what Council officers thought to be his lack of remorse or contrition.

77 The power to restrict access to Municipal Buildings under cl 10.1 must be exercised for the purpose of fulfilling the objectives of the Local Law, which include preventing and suppressing nuisances which may adversely affect the enjoyment of life or the health, safety or welfare of persons living within the municipal district. Steps taken to protect female patrons of the leisure centres from inappropriate behaviour by the plaintiff would be consistent with this objective. Any concern about the plaintiff's lack of disclosure, remorse or contrition must therefore be allied to the protective purposes of the Local Law in order to justify his removal or suspension from the leisure centres. It would not be legitimate, for example, for the Council to act on the basis that the plaintiff's lack of disclosure, remorse or contrition showed him not to have been sufficiently punished for the offensive conduct.

78 It might well be possible to relate the plaintiff's alleged inability to appreciate the seriousness of the offensive conduct and his lack of disclosure, remorse or contrition to the need to take steps to protect female patrons from the possibility of being unknowingly photographed by him in the future. Such steps might reasonably include restricting the plaintiff's unsupervised exposure to female patrons on a temporary basis. However, it is not at all clear how (or whether) the particular form of the restriction that the Council has imposed - a ban for a minimum period of two years but possibly extending indefinitely - is responsive to or adapted to assuaging concerns of the relevant kind. The rationale for the minimum period is entirely opaque: there is no reason why two years was fixed upon rather than one year or ten years or some other period altogether. The period of two years is arbitrary, in that there is no logical connection between that period and protecting female patrons from any danger to which the plaintiff's alleged lack of disclosure, remorse and contrition might expose them. Even if there were a good basis for concluding that these matters raised the possibility that the plaintiff might engage in the offensive conduct in the future, banning him from attending his workplace for a minimum period of two years - no matter what disclosures, undertakings or other statements he or his employer might give or make in the interim - is not a measured (or reasonable) response to this concern.

79 Moreover, the potentially indefinite form of the ban does nothing to clarify its rationale. Although the plaintiff may ask for the ban to be lifted at the conclusion of two years, he is given no indication of what is required in order to make a successful application. There is a total lack of clarity and transparency in regards to how the arrangement embedded in the ban is supposed to work or, indeed, as to why it was thought necessary to give the Council the option to make the ban a permanent one.

80 Given the open-ended nature of the ban, the absence of any guidance as to how a request to remove it would be treated, and the lack of any clear rationale for its imposition, the Second Decision is unreasonable in that it lacks intelligible justification. It is also a disproportionate exercise of an administrative discretion in the sense described by the Chief Justice in Li: an instance of taking a sledgehammer to crack a nut. The offensive conduct had already been dealt with by the Magistrates' Court, which had seen fit to impose a diversion order (that was subsequently discharged), and the ban involved denying the plaintiff access to his workplace, potentially in perpetuity. In these circumstances, the Council was obliged to tread carefully when using the Local Law to restrict the plaintiff's access to the leisure centres.

81 I observe that Council officers also expressed concern about the damage to the Council's 'business' due to female patrons boycotting the Centre. This particular concern was apparently based on the anonymous complaint (and threat) that was made to Bellarine Centre staff that prompted the Council's investigation in the first place and on the report of what was said to a staff member by other mothers at a local childcare centre. While a period of two years might reasonably allow for the outrage of patrons to dissipate or blow over, the possible 'damage' to the Council's business caused by the attitude of a group of angry patrons (who may not be fully informed of the facts) is not, in my view, a relevant consideration for the exercise of the power under cl 10.1 of the Local Law, particularly where the power is used to restrict an individual's access to his workplace.

82 I have concluded that the Second Decision can be characterised both as a manifestly disproportionate response to the Council's concerns (insofar as they were legitimate concerns) and as a decision that lacks intelligible justification. The Second Decision is unlawful because the Council did not comply with the requirement in cl 176 of the Local Law to act reasonably and in proportion to the nature and extent of the breaches of the Local Law that it had identified. Moreover, were it necessary to decide, I would hold that the Second Decision is unreasonable in the Wednesbury sense.

83 It remains to consider whether the Court should exercise its discretion to set aside the Second Decision. Council relies on a suite of cases to assert its common law right to regulate the entry of persons onto its land. These cases concern access to race courses,[41] casino premises[42] and public houses[43] and, so the Council says, support the proposition that the Council has a common law proprietary right, independent of its powers under the Local Law, to refuse entry to municipal buildings and to grant or revoke licences to enter such buildings. The Council therefore submits that it has the right to exclude members of the public from its premises without the need to provide reasons. As a result, even if the plaintiff's exclusion from the Bellarine and Leisurelink Centres was a breach of the Local Law, the Council would be at liberty to revoke the plaintiff's licence to attend the premises. As a grant of relief under O 56 is discretionary, the Council submits that the Court ought not to exercise its discretion in favour of the plaintiff in circumstances where it has an unfettered right to exclude the plaintiff from the Centres in the exercise of its common law proprietary rights.

84 The error made by the Council has had serious consequences for the plaintiff and involves, in substance, a misuse of the Council's power under the Local Law. The Second Decision should not be allowed to stand. The Court will exercise its discretion to set the Second Decision aside whether or not it is open to the Council to exercise a common law right to exclude the plaintiff from the premises.

85 I will hear from the parties on the form of the orders that need to be made.

[1] The plaintiff was charged under s 17(1)(d) of the Summary Offences Act 1966 (Vic).

[3] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[4] The application for review of that decision was made within the time specified in r 56.02(1).

[5] [2014] FCAFC 1.

[7] East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605 ('East Melbourne Group').

[10] As was submitted in the affidavit of Mr Frost.

[11] East Melbourne Group 633 [112] (per Warren CJ).

[12] Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36.

[14] Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24, 40-41.

[15] [1995] HCA 58; (1995) 184 CLR 163 ('Craig').

[16] Craig 179. Nothing said by the High Court of Australia in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 detracts from this, although the High Court observed (at [73]) that the reasoning in Craig was not to be seen as providing a rigid taxonomy of jurisdictional error.

[17] [2013] HCA 18; (2013) 297 ALR 225 ('Li').

[18] Which made clear that it could not operate to allow the Tribunal to act other than according to the law set out in the Migration Act in the exercise of its function of review and that the Tribunal was not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice: Ibid 232 [14].

[20] Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) ('Judicial Review of Administrative Action') 363.

[21] Ibid, referring to Guiseppe v Registrar of Aboriginal Corporations [2007] FCAFC 91; (2007) 160 FCR 465, 471-472.

[22] [2007] FCAFC 91; (2007) 160 FCR 465.

1. [24] The unreasonableness ground and associated bases for impugning administrative decisions such as irrationality and illogicality have received attention from the High Court of Australia in recent times. In Judicial Review of Administrative Action (at 361- 362), the authors describe the evolution of the unreasonableness ground of judicial review in England and in Australia, commencing with its status as an 'outlier', given the focus in judicial review on the four corners of the decision-maker's powers rather than on fairness to the individual concerned. They observe that this has changed dramatically in England since the advent of the Human Rights Act 1998 (UK), which requires proportionality review by the courts. In Australia, however, the unreasonableness standard remains as it was and proportionality review has not been adopted as a judicial review ground. Although in the early days, some Australian cases tentatively followed England, Australia's unreasonableness standard is 'now almost as demanding as it was at the outset'. The learned authors observe, however, that space vacated by 'unreasonableness' has now been occupied by 'serious irrationality or illogicality': Judicial Review of Administrative Action, 362.

[25] See, eg, Ex-parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 and Li.

[27] Ibid 237 [28], referring to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 234.

[30] Ibid 246 [63]. See Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 36; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 554 [116].

[31] It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused: Ibid 247 [67]. In Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36 Brennan J said that Wednesbury unreasonableness 'leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power'.

[33] [1990] FCA 139; (1990) 96 ALR 153, 167-8.

[34] The three paradigm cases are derived from Margaret Allars, Introduction to Australian Administrative Law (Butterworths, 1st ed, 1990) 191 [5.57].

[36] [1936] HCA 40; (1936) 55 CLR 499.

[39] Ibid 256 [105], referring to Dunsmuir v New Brunswick [2008] 1 SCR 190.

[40] Ibid 257 [110]. According to Gageler J, there is, in particular, a close analogy with the settled principle that an appellate court will review the exercise of judicial discretion 'if upon the facts it is unreasonable or plainly unjust', or if 'failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court,' referring to Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519.

[41] In Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, the High Court of Australia described the private right of exclusion held by occupiers of premises to which the public are otherwise permitted access:

Since the decision in Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 there has been no doubt that a member of the public, admitted to such places as theatres or racecourses, has only a revocable licence from the owner or lessee of the premises, and that revocation, even in breach of contract, is effective so that such person may be required to leave the premises. Needless to say the owner of such premises may refuse to admit any person without assigning any reason.

[42] Hinkley v Star City Pty Ltd [2001] NSWCA 299.

[43] Owens v Normanton Liquor Accord [2012] QSC 118.