CHIEF COMMISSIONER BUSINESS FRANCHISE LICENCES v ANEK PTY LTD [1996] NSWCA 101

CHIEF COMMISSIONER BUSINESS FRANCHISE LICENCES v ANEK PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and COLE JJA 28 February, 28 February 1996 [1996] NSWCA 101

JUDICIAL REVIEW — statutory discretion — constructive failure to exercise. STATUTES — statutory discretion — scope of discretion — relevant factors. TAXES AND DUTIES — State turnover taxes — restoration of licences — fiscal matters govern discretion.

The holder of a licence under the Business Franchise Licences (Tobacco) Act 1987 was taken over on 30 November 1995. As a result of mistakes by the former and new owners the licence expired on 27 December 1995 without being renewed. When the mistake was discovered the former licensee promptly applied on 25 January 1996 for the Commissioner to reinstate the licence under s40(2) of the Act. The Commissioner failed to act by 15 February. The former licensee then applied for and obtained an order in the nature of a mandamus based on the Commissioner's constructive refusal to exercise his discretion. He appealed. HELD: dismissing the appeal:

(1) That the scope of the statutory discretion under s40(2) must be determined by reference to the statute as a whole.

R v Australian Broadcasting Tribunal Ex parte 2HD Pty Ltd (1979) 144 CLR 45 applied.

(2) That a reasonable time for the exercise of a discretion depends inter alia upon the information the decision maker needs and the information already known. (3) That as the discretion under s40 (2) was a narrow one and the commissioner had the required information in his possession on 25 January there had been a constructive refusal to exercise the discretion.

ORDER Appeal dismissed with costs.

Handley JA This appeal, which has been expedited, challenged the order of Dunford J made in the Administrative Law Division seven days ago directing the appellant to exercise his discretion under s40(2) of the Business Franchise Licences (Tobacco) Act 1987 (the 1987 Act) by Spm on 27 February. Time for compliance with this order has been extended by consent until 5pm today.