Savannah Associates Ltd & Ors v Creaser [2003] ACTSC 26 (2 May 2003)

Last Updated: 13 May 2003

SAVANNAH ASSOCIATES LIMITED, WYLKIAN PTY LIMITED, AUSTRALASIAN SPECTACULARS PTY LIMITED

and HAROLD SCOTT UPTON v WAYNE ANTHONY CREASER

[2003] ACTSC 26 (2 May 2003)

PRACTICE AND PROCEDURE - Dangerous Goods Act 1975 (ACT) - Applications for licences to import, keep and sell fireworks - fit and proper person - purposes contrary to public interest - information required for decision - information provided by applicants - local agents - total weight v. net explosive quantity.

Dangerous Goods Act 1975 (ACT) ss 8, 9(1)(c), 10, 11, 17, 21, 28, 29, 31, 32(1)(c), 33, 45

Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 3, 5

Corporations Act 2001 (Cth) s 601CJ

Dangerous Goods Regulations 1978 (ACT) Regs 6, 7, 8, 57, 73, 75, 77, 97

Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 306

No. SC 275 of 2001

Judge: Higgins CJ

Supreme Court of the ACT

Date: 2 May 2003

IN THE SUPREME COURT OF THE )

) No. SC 275 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SAVANNAH ASSOCIATES LIMITED ARBN 093 442016

First Applicant

WYLKIAN PTY LIMITED

ACN 008 624 379

Second Applicant

AUSTRALASIAN SPECTACULARS PTY LIMITED ACN 089 624 379

Third Applicant

HAROLD SCOTT UPTON

Fourth Applicant

AND: WAYNE ANTHONY CREASER

Respondent

ORDER

Judge: Higgins CJ

Date: 2 May 2003

Place: Canberra

THE COURT ORDERS THAT:

1. All decisions of the respondent are set aside and remitted to the respondent further to consider the same according to law, as explained in these reasons.

2. The parties may be heard as to consequential orders and directions, and as to costs.

1. This action was originally commenced on 4 May 2001. The applicants each sought to have set aside certain decisions of initially, Mr Anthony Smith, the former Dangerous Goods Chief Inspector, then his successor, the respondent, Mr Wayne Creaser.

2. The first applicant (Savannah) challenges decisions to refuse to grant licences -

* To import explosives

* To sell explosives

* To keep explosives (2)

3. The second applicant (Wylkian) challenges decisions to refuse to grant licences -

* To import explosives

* To keep explosives

4. The third applicant (Australasian Spectaculars) challenges decisions to refuse to grant licences -

* To keep explosives

* To import explosives

* To sell explosives

5. The fourth applicant (Upton) challenges a decision to refuse to grant -

* Permit GP19 - to sell explosives

6. Upton further challenges a decision to impose conditions on licence to manufacture explosives Licence No. ME 29.

7. Wylkian further challenges a decision to impose conditions on licence 908.

8. Those decisions were made on or about 31 August 2001, replacing earlier decisions which had been reversed by the respondent. This was done, principally, to clarify and narrow the issues.

9. The current application is a "Further Amended Application for an Order of Review" dated 29 May 2002.

10. It added applications to review decisions to refuse to issue and/or renew Licence to Carry 609 and Licence to Keep 807.

11. The grounds relied upon to support those applications were that:

"a. a breach of the rules of natural justice occurred in connection with the making of each decision;

b. the procedures that were required by law to be followed in respect of each decision were not observed;

c. the decision was not authorised by the enactment under which it is purported to have been made;

d. the making of the decision was an improper exercise of power;

e. the decision involved an error of law;

f. the decision was induced or affected by fraud;

g. there was no evidence or other material to justify the making of the decision;

h. the decision was otherwise contrary to law;

i. there has been an unreasonable delay in making the decision in respect of Licence to Carry 609 and Licence to Keep 807."

THE STATUTORY REGIME

12. Each application relies on a right of review of the decisions of the respondent made pursuant to the Dangerous Goods Act 1975 (ACT) (the DG Act). That is a New South Wales Act applied and amended by Australian Capital Territory legislation. That Act provides, pursuant to s 29, that specified classes of decisions pursuant to the DG Act are subject to review by the Administrative Appeals Tribunal (AAT). However, these applications are made pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR Act). That Act applies generally to decisions made under an enactment, unless excluded. The DG Act and the Dangerous Goods Regulations 1978 (ACT) (the DG Regs) made thereunder are enactments and not excluded from review under the ADJR Act.

13. The permissible grounds of review are specified in s 5 of the ADJR Act:

"5 Applications for review of decisions

(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Supreme Court for an order of review in respect of the decision on any 1 or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorised by the enactment under which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law.

(2) The reference in subsection (1)(e) to an improper exercise of a power includes a reference to--

(a) taking an irrelevant consideration into account in the exercise of a power; and

(b) failing to take a relevant consideration into account in the exercise of a power; and

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(d) an exercise of a discretionary power in bad faith; and

(e) an exercise of a personal discretionary power at the direction or behest of another person; and

(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; and

(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; and

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j) any other exercise of a power in a way that constitutes abuse of the power.

(3) The ground specified in subsection (1)(h) shall not be taken to be made out unless--

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

14. The range of orders which may be made in the event that any of those grounds is made out, is set out in s 17:

"17 Powers of the Supreme Court in respect of applications for order of review

(1) On an application for an order of review in respect of a decision, the Supreme Court may, in its discretion, make all or any of the following orders:

(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Supreme Court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Supreme Court thinks fit;

(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing in order to do justice between the parties.

(2) On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Supreme Court may, in its discretion, make either or both of the following orders:

(a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;

(b) an order directing any of the parties to do, or to refrain from doing, any act or thing in order to do justice between the parties.

(3) On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Supreme Court may, in its discretion, make all or any of the following orders:

(a) an order directing the making of the decision;

(b) an order declaring the rights of the parties in relation to the making of the decision;

(c) an order directing any of the parties to do, or to refrain from doing, any act or thing in order to do justice between the parties.

(4) The Supreme Court may at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of any order made by it under this section."

15. Any order that may be made as a final order may be made by way of interim order (see Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 306 per Foster J at 308-9), subject to such conditions, including undertakings as to damages, as may be appropriate.

16. By agreement all previous applications for licences were subsumed into one series of applications which were responded to on 31 August 2001.

17. It is convenient to deal with each decision separately:

A. Application by Savannah for a licence to import explosives

18. The respondent refused this application.

19. Section 17(2A) (now s 17(3)) of the DG Act refers to the conditions to be satisfied before such an application is to be granted. Three are relevant here:

(a) that the applicant is a fit and proper person;

(b) that the purposes for which it is intended to import the explosive "... is not contrary to the public interest"; and

(c) that all reasonable precautions have been taken or are proposed to be taken, to ensure the safety of the goods and of the public during the course of the importation ...

20. The respondent formed the opinion that to grant such a licence to an applicant, that applicant must also hold a licence to possess the explosives in the Territory and, further, hold licences and have licensed facilities to keep those explosives in the Territory.

21. Accordingly, on 22 June 2001, the respondent requested -

* Clarification of the identity of the intended licensee

* Details concerning the premises in Pialligo and/or Fyshwick at which the explosives were to be kept

* Details of the directors of the company

* Clarification of the quantities of explosives intended to be kept

* The experience of the company in relation to "safe handling" of explosives

22. The information provided by (or on behalf of) the applicant disclosed that Savannah was a foreign company, registered in the Virgin Islands. Its sole director was another company, registered in Liberia.

23. However, the local agent was Upton. His experience and qualifications were well-known to the respondent, he having held various explosives licences in the past and, in consequence, having been found to be a fit and proper person. His predecessor as agent was Mr Michael Parker. He was equally well-known to the respondent.

24. Section 601 CJ of the Corporations Act 2001 provides:

"A local agent of a registered foreign company:

(a) is answerable for the doing of all acts, matters and things that the foreign company is required by or under this law to do; and

(b) is personally liable to a penalty imposed on the foreign company for a contravention of this Act if the court or tribunal hearing the matter is satisfied that the local agent should be so liable."

25. It is axiomatic that a company can only act through the agency of natural persons. In this case, the local agent.

26. Thus, insofar as the respondent assumed that the company itself should have experience in the handling, storing or transportation of explosives, he was in error. It follows that the respondent further erred in considering that he had insufficient information concerning "the experience of the company".

27. The respondent gave a further reason for refusing Savannah's application that the quantity of explosives in question was unclear. However, whilst that was valid as at 21 November 2000, the quantities were clarified on 4 May 2001 as 6000 kg of explosives of classes 1.2G, 1.3G, 1.4G and 1.4S.

28. It was further objected by the respondent that the quantities were specified in terms of net explosive quantity (NEQ). That is, the weight of explosive substance exclusive of the casings and/or packaging.

29. Insofar as the total weight of the product was concerned, it seems to me that for the purposes of the regulations, it is the NEQ that is relevant. Otherwise, there would be no standard measure against which quantities may be judged. That is not to say that for other purposes (eg. safety, destructive power) casings would not be relevant.

30. Insofar as the respondent considered that it was necessary for Savannah itself to hold licences to possess and keep explosives, that was a further error. An importer of liquor, for example, may deliver the goods to a different licensed person. Similarly, the importer may engage another suitably licensed person to transport the goods. That is not to say that the importer should not disclose the arrangements for such transport and storage, particularly where, as here, the goods are inherently dangerous.

31. Thus the respondent was not in error insofar as he required information concerning the transportation and intended storage of the explosives.

32. However, insofar as the applicant failed to provide sufficient detail, it is not to be concluded that the applicant is thereby not a fit and proper person to be licensed. It is to be assumed that a person is fit and proper, if they possess the relevant qualifications and experience. It was therefore an error for the respondent to assume that the applicant was not a fit and proper person.

33. Insofar as it arises, it also cannot be assumed that the purpose of lawful sale is, or even might be, "contrary to the public interest".

34. In the result the refusal was tainted by error. However a failure to grant the licence sought was warranted, due to the absence of relevant information concerning both the mode of transportation, and the manner of keeping of the quantity of explosives, (if any), that the respondent was prepared to approve for importation.

35. I have no doubt that if relations between the parties had been other than hostile, as evidenced by the rancorous tone of some of the correspondence, and the delays in dealing promptly with the various applications, then a polite request may have been followed by a co-operative provision of information.

B. Application by Savannah to sell explosives

36. An application to sell explosives is governed by s 21(1A) (now s 21(2)) of the DG Act. That requires the applicant to satisfy the respondent:

(a) that the applicant is a fit and proper person; and

(b) that all reasonable precautions have been or are proposed to be taken ... "to ensure the safe keeping of the explosives pending sale and the safety of the public".

37. The respondent, curiously, accepted for the purposes of this application, that the applicant had access to appropriate licensed facilities and licences to keep explosives.

38. On 22 June 2001 the respondent sought -

* clarification of the identity of the intended licensee

* details of proposed premises at Pialligo

* "drawings, specifications and calculations" with respect to premises at Pialligo and at Fyshwick

* details of the relationship between Savannah and other licence holders

* details of directors of Savannah

* clarification of the quantities of explosives proposed to be kept

* clarification of the quantities of explosives proposed to be kept for sale

39. The respondent decided that he was unable to determine who the applicant was. This was a particularly artificial objection, reading ambiguity into the application where none could reasonably be found to exist. The addition of the personal name after that of Savannah plainly referred to the then local agent of that company (see s 601 JC (supra)).

40. Further, the respondent made reference to the doubt he entertained concerning the role of the local agent. As at the date of the decision, that was Upton. I have already noted that this concern was not a valid one. The expertise of Upton was not open to doubt. He was approved for other licenses by the respondent.

41. The respondent also noted that Savannah then held no other licences.

42. Although expressed as a reason for refusal, this comment is not logically capable of justifying a refusal. It would otherwise be a chicken and egg style of argument. The respondent needed to be satisfied of the fitness of the particular licensee and of the other relevant matters. Holding or not of other licences per se is not relevant.

43. It was unclear, the respondent opined, which classes of explosives were to be included in the licence. That was true of the original application but the last communication before the decision was made identified class 1.2G explosives. Thus it could not form a basis for refusal that the respondent was unclear as to the category of explosives to which the application referred.

44. Another reason advanced was that two premises were referred to in the application; Shop 7 Fyshwick Plaza and Quokka Pavilion, EPIC. The respondent did not claim that the premises were insufficiently identified or that they were inappropriate for the purpose. Rather, simply he claimed that he could not determine to which premises the application related. However all that was required of the respondent was that he either issue the licence in respect of each outlet, or one or the other of them, or refuse the application if, for a relevant reason, the premises in question were unsuitable or there was some other lawful reason to refuse the licence.

45. There was also reliance on non-compliance with regulation 6 and regulation 7 of the DG Regs. These objections cannot be sustained.

46. Regulation 6 merely defines "AS" as meaning a relevant Australian Standard. Regulation 7 merely provides that applications for licences are to be made to the Chief Inspector ie., the respondent. The references may well have been to earlier versions of the Regulations. It is true that s 45 of the DG Act permits forms of application to be "approved" and a note to Regulation 7 states:

"If a form is approved under the Act, s 45 (Approved forms) for applications, the form must be used."

47. It is common ground that no forms had been approved as at the decision date. It is doubtful whether s 45 would, even if forms were approved, permit refusal of an application which nevertheless provided all relevant information, merely because it was not in accordance with the "Approved form". However, that issue does not now arise for decision.

48. The respondent also declared himself not satisfied as to the precautions proposed to be taken pursuant to s 21(1A)(b) (now s 21(2)) (supra).

49. However, what, if any, cause for concern the respondent had is not revealed. The premises were identified, the class of explosive was identified and the responsible local agent was a known and already licensed person. Unless the respondent had specific concerns, it is not a sufficient reason for refusal to assert an unspecified dissatisfaction.

50. The regulations provided for a penal licence fee of $5,000. The applicants have disputed, in other proceedings not before me, the validity of that fee. Neither party agitated that issue before me. Hence, I must conclude that it was open to the respondent to decline to issue the licence sought unless the fee was paid, despite the other errors identified.

C. Application by Savannah to keep explosives at Shop 7, Fyshwick Plaza

51. This application is for a licence authorised for issue by s 8 DG Act, It provides:

"8 Licensing of premises

(1) Subject to this section, the chief inspector may issue licences for the keeping of dangerous goods in premises.

Note The definition of in premises includes on the premises (see the dict).

(2) The chief inspector shall not issue a licence under this section for the keeping of dangerous goods in premises unless, having made due inquiry, the chief inspector is satisfied that--

(a) the applicant is a fit and proper person to hold the licence; and

(b) the composition, construction and dimensions of the premises in which it is proposed to keep the goods are such as to ensure the safe keeping of the goods in those premises and the safety of the public; and

(c) all reasonable precautions have been taken, or are proposed to be taken, to ensure the safe keeping of the goods in the premises and the safety of the public.

(3) The chief inspector shall not issue a licence under this section unless it specifies--

(a) the person to whom it is issued; and

(b) the dangerous goods or the class or classes of dangerous goods that may be kept; and

(c) the premises in which the dangerous goods may be kept.

(4) While a licence under this section is in force, the premises specified in the licence are premises licensed under this section for the keeping of the dangerous goods or dangerous goods of the class or classes so specified."

52. The respondent, in refusing the application, noted that DG Regulation 73 provided that:

"Except as provided by the Act, section 9(1)(c), no dangerous goods shall be kept in or on licensed premises except in a licensed depot."

53. The dictionary in the DG Act and Regs defines "licensed depot" as "a depot in or on licensed premises and specified as a depot or magazine in the licence for the premises". "Depot" is defined as (relevantly) "(a) ...a building, structure, room, compartment, tank, store, area or receptacle where dangerous goods are kept ...."

54. DG Regulation 75 allows for the licensing of depots (which includes a magazine). Depots are required, to be licensed, to conform to Part 5 (ie., regs 69-171).

55. The reference to s 9(1)(c) is not transparent. That section provides merely that:

"(1) A person shall not keep dangerous goods except -

(c) in the quantities and in the way and subject to the conditions that may be prescribed for this section in relation to the goods."

56. The definition of "magazine" in the DG Regs ("a depot in which explosives are kept") for the purposes of keeping explosives excludes "shopgoods fireworks". Those are defined as -

"... fireworks that contain less than 40 g of an explosive substance, being fireworks other than marine distress fireworks, starting pistol caps and fireworks known as grebes, lances, mines, mortar shells, Roman candles, rockets, wheels, salutes and torches."

57. The definition is far from clear. However, it seems plainly intended to include those fireworks usually sold to and used by the public (subject to a buyer's licence - see Reg 57) for personal use and to exclude the more powerful display fireworks used for commercial displays.

58. The respondent also noted the requirements of DG Reg 8. It requires an applicant for a licence to keep (s 8 DG Act), carry (s 10 DG Act) or manufacture (s 19 DG Act) explosives to provide "drawings, specifications and calculations" relating to the relevant premises or vehicle both to determine the conformity "to the Act" of such premises and the distance of the premises from all "occupied buildings, or buildings to be occupied in or on those premises (reg 8(2)(b)(i)); and details of "other depots or proposed depots in or on those premises (reg 8(2)(b)(ii)) and each depot and "protected work" within "twice the separation distance prescribed by regulation 77" (reg 8(2)(b)(iii)).

59. The term "protected work" means, in effect, a house or building that is or might be occupied, including other depots or process buildings (ie., fireworks factories).

60. The ascertainment of the relevant "separation distance" is a complex task. DG Regulation 97 refers to the mode of calculation. It depends on the licensed capacity of the magazine, the class of explosive and the presence of "protected places" or other prescribed "works", "magazines", "process buildings" etc.

61. The application proceeded on the assumption that the respondent was already aware of that information. There is no doubt that, even apart from the specific requirements of these regulations, such information would be relevant to the "precautions" for public safety referred to in (inter alia) s 8 of the DG Act.

62. The respondent, on 22 June 2001 sought "further information". The requested information was for -

* drawings and specifications of the "premises at Fyshwick"

* details of the relationship of Savannah with existing licence holders

* details of the directors of Savannah

* the quantity of explosives to be kept

* details of the experience of Savannah in relation to the safekeeping and handling of explosives

63. Reference was again made to the alleged disadvantage of the Local Agent, then Upton, albeit that that person was undoubtedly qualified and experienced.

64. As I have already noted a company can act only through the agency of, in this case, its local agent. Thus if the company commits an offence, the agent will necessarily be knowingly concerned in it.

65. It follows that reasoning based on the objection that the agent would not be liable if the company committed an offence was fundamentally flawed.

66. However, it was the case that Savannah had not provided details showing other buildings, separation distances, sources of ignition or specifications as requested.

67. The question of the quantities to be kept was certainly confusing and was directly relevant to the ascertainment of applicable separation distances. Nevertheless, the final request was to keep 1000 kg (1 tonne) of class 1.4G explosives. That was the request which the respondent ought to have addressed.

68. Class 1.4G includes fireworks which are required to be kept in a magazine unless they are "shopgoods fireworks". If not, then a 26 m or 36 m separation distance would be required.

69. There was an existing licence to keep explosives in respect of Shop 7. However, instead of relying upon that as satisfying his need for information, the respondent required Savannah to demonstrate the proposed co-ordination between licensees and their respective areas of control within or in respect of Shop 7.

70. Whilst superficially attractive, these objections would readily have been resolved by an on-site inspection and interview with Upton and the other relevant licensee or licensees.

71. The failure to do so is, to my mind, indicative of the obstructive and uncooperative attitude of those administering the DG Act.

72. This is no better illustrated than by the respondent's finding that Savannah was not a "fit and proper person" to be licensed because of the "confused nature" of its application. That this is nonsensical is self-evident when it is apparent that the requirement can only be judged by reference to the fitness or otherwise of the local agent (or agents). That fitness or lack of it did not rate a mention.

73. Reliance was also placed on the lack of an approved form despite the fact that, as at 23 May 2001, there was no such form. To conclude from Savannah's failure to use a non-existent form or to comply with an inapplicable regulation that it (or its agent) was not a fit and proper person is plainly unreasonable. It would be just as absurd as concluding that because of the errors of law or process committed by the respondent, he was not a fit and proper person to be the Chief Inspector.

74. It would have been open to the respondent to have decided to grant a license for a lesser quantity of fireworks, or for "shopgoods" only, after inspection of the premises and proper consultation.

75. Whilst I cannot conclude that a licence should have been granted as requested, the refusal was fundamentally flawed.

D. Application by Savannah for licence to keep explosives at Pialligo

76. This was similar to the previous application. The place was referred to as "Explosives Store, Pialligo ACT".

77. The material provided on 22 August 2001 referred to it as a pyrotechnic magazine specified in Appendix E of AS 2187.1-1998.

78. The respondent objected that without inspection he could not be sure of the magazine's capacity or compliance.

79. In contrast to the preceding application, the respondent did recognise the simple expedient of inspecting this proposed facility. However, he eschewed that option because he did not know where the magazine was situated. The simple expedient of asking where it was and framing the licence accordingly was not, it seems, considered.

80. More valid as an objection were the varying requests referring to different quantities that Savannah sought to be licensed to keep at Pialligo.

81. On 8 May 2000 Savannah requested that the licence permit the keeping of up to 1000 kg NEQ fireworks of class 1.3G, 1.4G and/or 1.4S.

82. On 26 July 2000 the request was specified as being for "1 container" of fireworks.

83. The latter request was obviously too imprecise to provide all relevant information to the respondent.

84. On 21 November 2000, however, the request was said to be for "one container of 3000 kg NEQ, pyrotechnics class 1.3G".

85. On 4 May 2001 the request was said to be for 12000 kg of class 1.2G.

86. The respondent objected that he could not, as a result, determine what was being sought or the separation distances applicable.

87. Again, though a valid concern, it could easily have been resolved. The respondent had only to confirm with Savannah whether the most recent request was the quantity applied for, or whether some other type and quantity would suffice.

88. It was also a valid observation that AS 2187.1 App. E (a reference to the magazine) referred to a design appropriate for no more than 7500 kg of explosives.

89. The respondent again raised his contention, plainly unsustainable in my view, that the weight of an explosive includes the weight of its casing. That the standard would relate to the explosive substance only not only enables an objective standard to be applied, but it is the standard used expressly for "shopgoods fireworks".

90. Similar unsustainable objections were made as in the previous application relating to the approved form and the fitness of the applicant.

91. As with the previous application, the questions validly arising could and should have been settled by inspection and interview. The reasons otherwise are likewise fundamentally flawed and the refusal set aside, though it does not follow that, as things then stood, a licence must have been granted on the terms sought by Savannah.

E. Application by Wylkian to sell explosives

92. This, as with B above, relies on s 21 of the DG Act. In addition to the requirements of that section, the respondent considered it necessary that he be satisfied that the applicant had access to appropriate licences to keep explosives and to licensed premises.

93. After noting those requirements, including that of the "approved form", the respondent made the observations that:

* There had been a refusal on 3 July 2000 to process the application

* On 26 July 2000 a request was made relating to the sale of "1 container of fireworks"

* On 21 November 2000 approval was sought for the sale of class 1.3G pyrotechnics

* On 4 May 2001 Wylkian requested a licence to sell class 1.2G explosives

94. The respondent further noted that Wylkian did hold licences to keep 1.3G and 1.4G fireworks but had no licence to import fireworks into the Territory.

95. The relevance of these latter observations is not apparent. The respondent did not seem to understand that a licence grants permission to do or not the activities so licensed. It does not require them to be done, nor allow them to be done, otherwise than lawfully. Thus a licence to sell several classes of explosive does not require the licensee to sell those explosives. It may prove impossible if, for example, no licence to import relevant explosives is granted, or if the explosives are unable to be lawfully kept in the Territory.

96. The respondent also observed that Upton and Wylkian had been sent requests to produce records under s 31 of the DG Act.

97. Section 31(1) empowers inspectors (or police officers) to inspect premises and seize specified items (inter alia). It includes a power to -

"(k) require the production of any licence or permit or any book, record or writing required by the regulations to be held or kept and inspect, examine and take copies of extracts from it."

98. Failure to comply with a valid requirement under s 31(1)(k) is an offence, pursuant to s 32(1)(c), if done without reasonable excuse. It is, pursuant to s 33, a summary offence. There is a two year limitation period within which proceedings must be brought in respect thereof.

99. I am unable to determine whether any of the "requests" the respondent referred to would, if proved, be a valid request under s 31(1)(k). However, it would be appropriate, if it was to be so contended, that a summary prosecution be instituted and determined. It is not appropriate in these proceedings to make findings of criminal conduct without an appropriate determination by a magistrate. Of course, if such a finding had been made, that may have reflected adversely on the fitness of the unsuccessful defendant. It could also have led to proceedings to suspend or cancel a licence (see s 28 DG Act).

100. The respondent further objected that Wylkian's licence to keep explosives (no. 800) "does not have a condition prohibiting the sale of explosives". The relevance of this observation is not apparent save that it would not preclude a licence to sell being held concurrently with licences to keep or, indeed, to import explosives.

101. Again, as with the previous applications, the respondent has no valid reason to refuse the application based on a lack of an approved form or a conclusion as to fitness based on the form of the application. Nor could an adverse conclusion (failure to be satisfied) as to precautions be taken in the absence of any enquiry as to the proposed place or places of sale.

102. Appropriate conditions and/or consultation would have resolved the relevant uncertainties, if any, entertained. I would add that appropriate consultation is no more or less than an expression of the right to a fair hearing.

103. Refusal was, therefore, a fundamentally flawed decision, although, again, it does not follow that had due process been followed, a licence as sought would have been granted.

F. Application by Wylkian to import explosives

104. This engages s 17 of the DG Act. It, as with ss 8 and 21, requires satisfaction that the applicant is a fit and proper person and that all reasonable precautions have been or will be taken "... to ensure the safety of the goods and the public during the course of the importation ..." (s 17(2A)(c) (now s 17(3)).

105. The respondent considered it necessary further to consider whether the applicant had access to required licensed facilities.

106. Again, this betrayed a misunderstanding of the nature of a licence and the role of conditions. Obviously, the importer could not lawfully import other than by licensed conveyances (see DG Act s 10 and s 11). Nor is a licence to import able to be exercised only by one act of importation. A licence to import 3000 kg, for example, might well be achieved by a number of smaller or individual deliveries made over the term of the licence. Nor could a delivery be lawful unless made to licensed premises. Nor could the goods be sold, if that be the purpose of the importation, save by a person so licensed.

107. It is a requirement that the purpose of the importation is "not contrary to the public interest" (s 17(2A)(b) now s 17(3)(b)). However, it is difficult to conceive of any such adverse purpose absent some evidence that some anti-social objective (supply to criminals or wanton destruction) is intended. If such a purpose was reasonably suspected, of course, the applicant would need to rebut it.

108. It is apparent that the respondent has no such evidence. The conclusion expressed is, in my view, without any reasonable foundation. Had any foundation existed for such an adverse conclusion, it was incumbent on the respondent to adduce evidence warranting, at the least, such a reasonable suspicion.

109. The respondent noted varying identifications of the quantity to be imported.

110. On 26 July 2000 there was reference to "one container of fireworks" for the purpose of sale.

111. On 21 November 2000, the reference was to "one container - 3000 kg NEQ pyrotechnics of class 1.3G".

112. On 4 May 2001, there was reference to up to 6000 kg (one shipping container) of class 1.2G (including 1.3G, 1.4G and 1.4S).

113. Again, the respondent adopted the erroneous contention that total weight rather than NEQ is the relevant standard for quantities of explosives for the purposes of the DG Act. Nor was it a valid objection that there was no approved form or that details of the method of importation had not been specified. The DG Act prescribes that it be by licensed conveyances and by a licensed importer.

114. It would be relevant, however, to inquire as to the proposed place(s) for the keeping of the fireworks following their importation. The fact that Wylkian held licence 908 for keeping 100 kg of class 1.3G and 1.4G fireworks at least partly answers that inquiry.

115. The objection that Wylkian itself did not hold a licence to keep the total quantities sought to be sold was completely irrelevant. It assumes a bulk holding for sale not necessarily intended. The further proposition that importation for sale is not a purpose satisfying s 17(2A)(b) (now s 17(3)(b)) is self-evidently absurd. No fireworks can be sold save to a licensed person after a lawful importation and carriage, and no contrary purpose was suggested.

116. It follows that whilst there may have been valid conditions imposed as to time, dates and quantities to be imported over the course of the licence, the reasons for refusal were fundamentally flawed. Again, it would not necessarily have followed that, had the application been considered in accordance with due process, the licence as sought had to be granted.

G. Application by Wylkian for licence to keep explosives

117. Again s 8 of the DG Act applies to this category of licence.

118. It is noted that s 9(1)(c) makes it an offence to keep explosives otherwise than as permitted by the regulations and any relevant licence.

119. Regulation 8 requires an applicant to provide such drawings, specifications and calculations, as may be necessary (if any are not already known) to enable the respondent to determine the conformity of the relevant premises with the DG Act and Regs (see especially Reg 77, (supra)).

120. The respondent noted that Wylkian, though identifying Shop 7 (supra) had not provided information as required by Reg 8. Further, on 26 July 2000, Wylkian made reference to requiring a licence to keep explosives in a portable magazine.

121. That was, to some extent, clarified on 21 November 2000. The licence requested was for 1000 kg of pyrotechnics of class 1.4G fireworks at Shop 7, Fyshwick Plaza and 100 kg of class 1.3G pyrotechnics in a portable magazine, location unspecified.

122. On 4 May 2001 a licence for the keeping of 1000 kg of class 1.4G explosives at Shop 7 was sought. This merely repeated the earlier request.

123. The detail provided was not, of course, sufficient for a licence as sought to be then and there granted.

124. It is also true that as two other parties were seeking licences to keep explosives at Shop 7, conditions as to maximum capacity and coordination and control would have needed to be addressed.

125. The usual non sequitur as to lack of fitness by reason of failure to provide that information was also advanced.

126. The fact is, however, as I have said, that sensible administration and appropriate inspections would have enabled the outstanding information to be obtained. It would, at least, have afforded the applicant due process.

127. The reasons for refusal of the application were fundamentally flawed, though more information was required before a grant or refusal of a licence in some form could be rationally made.

H. Application by Australasian Spectaculars to keep explosives

128. This application also engages s 8 of the DG Act. The respondent noted the relevant provisions of that section and of the regulations.

129. The reasons for rejection of the application were relevantly the same as for the similar applications of Savannah and Wylkian.

130. There was a lack of specific information concerning the premises proposed to be licensed. It appears that Unit 6, Fyshwick Plaza was indicated. This may well be adjacent to Unit 7.

131. The quantity of fireworks proposed to be kept was initially, on 26 July 2000, unspecified. On 21 November 2000, the fireworks to be kept were specified as 100 kg of class 1.1G pyrotechnics to be held in a portable magazine. On 4 May 2001, the same quantity was referred to as "class 1 explosives" to be kept in a portable magazine.

132. The lack of specificity as to the place or places at which the explosives were to be kept would have been an impediment to the grant of the licence sought. However, the lack of such detail would not warrant refusal. The respondent himself recognized that an inspection of the proposed premises would be necessary. It is also apparent that conditions would have been required to effect the objectives of public safety referred to in s 8 including, inter alia, the overall capacity at any one time of the magazine to which the application referred.

I. Application for licence to import explosives by Australasian Spectaculars

133. This application, similar to that of Wylkian, engaged s 17 of the DG Act.

134. I need not repeat the erroneous assumptions and findings similarly made by the respondent as to other licensees, or the relevant standard for the calculation of the weight of explosives. Again, there was nothing to warrant the lack of satisfaction as to the fitness of the applicant, and the purpose of the importation being to use the explosives for a pyrotechnic display could not be regarded, even arguably, as being "contrary to the public interest".

135. The explosives specified as intended to be imported were, again, not consistent.

136. The initial request of 26 July 2000 was to import sufficient fireworks for "one fireworks display". On 21 November 2000 it was for one container of 3000 kg NEQ pyrotechnics. On 4 May 2001 it was for up to 6000 kg (one shipping container) of class 1 explosives.

137. The lack of specific detail as to quantities could have been dealt with by way of inquiry by the respondent and, if needed, inspection of the relevant licensed conveyances.

138. As pointed out in argument, it is not necessary that the licensed importer personally convey, keep or sell the explosives or import all of the goods at once. It is reasonable for the respondent to be satisfied that licensed persons, conveyances and premises will be utilised on any occasion of importation.

139. The decision to refuse the licence is set aside, but with the proviso applicable to all previous decisions; namely, that it does not follow that, even after due process was accorded the applicant, the respondent would necessarily be obliged to grant the licence sought.

J. Application by Australasian Spectaculars for licence to sell explosives

140. This application is subject to s 21 of the DG Act. Those provisions have been referred to above.

141. The initial request of 26 July 2000 simply requested a form to apply to "sell manufactured and remanufactured fireworks and displays". On 21 November 2000 the goods to be sold were specified as being class 1.1G pyrotechnics. On 4 May 2001, class 1 explosives were identified as being those which Australasian Spectaculars was seeking to import.

142. Whilst the request was not entirely unclear, despite the respondent's claim to the contrary, more specificity could have been offered.

143. I have already noted that the grant or refusal of such a licence does not necessarily depend on possession of other licences, but it is relevant for the respondent to be informed as to who will keep the explosives and that such keeping is appropriately licensed.

144. The suggestion that there was any basis for refusal, because of the lack of a valid application or non-satisfaction as to the fitness of the applicant, is rejected for the same reasons as already expressed.

145. The decision to refuse the licence is, therefore, set aside with the same proviso as has been previously noted.

K. Application by Harold Upton to sell explosives

146. This application is subject to s 21 of the DG Act.

147. The respondent noted that on 18 January 2001, Upton sought a licence to sell from Unit 7, Fyshwick Plaza -

* Shopgoods fireworks class 1.4S

* Display fireworks class 1.3G

* Fireworks class 1.4G

148. On 4 May 2001 application was made to renew licence LS00001 to sell shopgoods fireworks and fireworks class 1.4S, and display fireworks class 1.3G and 1.4G.

149. A police record check was supplied on 20 August 2001. Nevertheless, a licence to sell (no. 18) was issued on 8 May 2001, on payment of the penal fee of $5,125.00 and the supply of testing information. On 8 June 2001 this was replaced by licence no. 19 in favour of Wylkian.

150. There were, on 5 and 26 June 2001, requests made under s 31 of the DG Act concerning the activities, including records of sales, of those two parties. The respondent alleges that the parties did not respond. I have already noted above that the failure to respond may be an offence, but it is not relevant presently, unless and until the contravention is proved in a summary prosecution.

151. The fact that Upton had no licence to keep explosives was also irrelevant, though the respondent was entitled to information as to where and by whom such goods would be kept pending, and in the course of, sale so as to be satisfied, if there was any reason to suppose the contrary, that they were duly licensed.

152. It follows that some of the reasoning of the respondent was erroneous, but the applicant had failed to respond to relevant requests for information or pay the prescribed fee.

153. If Upton persists in refusing to provide the requested information, then the respondent could refuse to grant his application. However, the refusal expressed is set aside, with the proviso already mentioned in respect of the other decisions.

GENERALLY

154. All decisions are set aside and remitted to the respondent further to consider the same according to law as explained in these reasons.

155. I will hear the parties as to consequential orders and directions and as to costs.

I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 2 May 2003

Counsel for the Applicants: Mr R Thomas

Solicitor for the Applicants: Mr G Bates

Counsel for the Respondent: Mr P A Walker

Solicitor for the Respondent: Mr D Jarvis

Date of hearing: 26, 27 and 28 August 2002 and

5 September 2002

Date of judgment: 2 May 2003