Statutory duty & breach – pure economic loss from refusal to grant a permit?

Meshlawn P/L & Anor v State of Qld & Anor [2010] QCA 181

Catchwords

STATUTES – ACTS OF PARLIAMENT – STATUTORY POWERS AND DUTIES – EXERCISE – LIABILITY – NEGLIGENCE – PARTICULAR CASES – where appellants owned and operated nightclubs at Surfers Paradise – where appellants had consistently been granted ‘extended hours permits’ under the Liquor Act 1992 (Qld) to operate their nightclubs until 5.00 am – where, in March 2004, the chief executive refused each appellant’s application to renew the permits – where appellants successfully appealed to the Commercial and Consumer Tribunal – where appellants commenced proceedings against the chief executive and the second respondent for damages for pure economic loss – where trial judge dismissed the claims – whether the relationship between the appellants and the chief executive was such as to give rise to a duty of care – whether the statutory right of appeal is consistent with the existence of a duty of care – whether the nature of the statutory power under s 121A is consistent with the existence of a duty of care – whether the chief executive breached the alleged duty – whether the trial judge erred in discounting his assessment of damages by 20 per cent

McMurdo P, Chesterman JA and Fryberg J

Their Honours were agreed there was no breach of the duty of care by the Chief Executive under the Liquor Act 1992 (Qld). The President and Fryberg JA found a limited duty of care was owed by Chief Executive, Chesterman JA however, found there was no duty of care owed.  The question of the duty of care arose in circumstances of a claim for ‘pure economic’ loss for refusing a permit to sell alcohol between 3am – 5am.

The judgment of Chesterman JA is a touchstone resource for consideration of the decisions of:

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54, applied Jones v Department of Employment [1989] QB 1, considered Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36, applied Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3, distinguished Rowling v Takaro Properties Ltd [1988] AC 473; [1987] UKPC 2, considered Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15, applied Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41, cited

Otherwise, the appeal was dismissed on the remaining ground of the discount of 20% by their Honours.

 

Brisbane Barrister – David Cormack

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