Court orders owner of alleged illegal tobacconists to close businesses for six months
In June, a significant quantity of illicit cigarettes, loose tobacco and vapes were allegedly seized during raids on multiple retail premises in Hervey Bay.
Earlier this month, Queensland Health launched court action against the owner of some of the stores, Mohammed Alfalahi, seeking a permanent injunction under strengthened tobacco laws.
While that matter is pending, on Wednesday, Queensland Health sought an interim injunction of the same effect.
Lawyer Peter O'Connor told the court the order would restrict Mr Alfalahi from engaging in the alleged illegal conduct and receiving income from it unlawfully.
"Until such time that the substantive proceedings can be finalised," he said.
Mr O'Connor told the court the "fundamental question" was whether any of Mr Alfalahi's businesses held a licence to supply smoking products.
"There's no assertion by [Mr Alfalahi] that in fact he has or did in fact at any stage," he said.
"The evidence, in fact, establishes that he has not ever held such a license."
Mr O'Connor told the court, Mr Alfalahi is the tenant of the business premise, and the permitted use according to his lease is a tobacconist or tobacco shop.
"He can't claim ignorance of the nature of business operating out of the premises that he is leasing," he said
"He similarly cannot claim ignorance of the regulatory scheme given the number of interactions that he has had with the authorities over a substantial period of time."
The court heard he had previously paid infringement notices for past contraventions under the legislation.
Mr Alfalahi's lawyer James Wallace told the court it had been difficult to get in contact with his client as he lived overseas, and had not been adequately instructed on any possible defence to the allegations.
However, Mr Wallace said his client "can't possibly be criticised" for not responding in detail, in what he asserts were inadequate time frames for submitting material, and that this was "not a full hearing on the merits" of the allegations.
"I'm not conceding the prima facie case," he said.
"I have no evidence to rely on to submit sensibly."
It was argued that several employees would lose their jobs if the order was granted and Mr Alfalahi could be at risk of breaching the order due to his limited communication and the impracticality of shutting the stores effective immediately.
Mr Wallace argued the balance of convenience should be in favour of his client, as there were separate yet related proceedings due to be heard in the magistrates court later this month.
"In theory, in 10 days' time a magistrate will determine whether those five stores should be shut down for six months," he said.
"Leaving the status quo would allow the matters to proceed as they are in the magistrates court without pre-emptively finalising the matter."
The court heard the magistrate court action and the district court action "complement each other" but they served independent purposes.
In the lower court proceedings, Queensland Health is seeking not only closure of the stores for six months, but also enforcement against the landlord to ensure no-one else takes over the lease.
Judge Ken Barlow KC granted the interim injunction, accepting there was "no real evidence of substance of any defence".
"It seems to me there is no doubt a prima facie case," he said.
Judge Barlow KC also rejected the submission Mr Alfalahi could not properly instruct his lawyers.
"The communication abilities of the modern world, particularly between Australia and Dubai where [Mr Alfalahi] currently lives, are such that I do not accept that the respondent would not have had the opportunity to be sent the material read and discuss it at length with his solicitors," he said.
"While I do not go so far as to infer that there is no possible defence... the absence of any skeleton of any defence does not assist [Mr Alfalahi]."
Mr Alfalahi will have until Friday to cease operating the five business.
He will also be prohibited from running any other companies which involve the sale of tobacco.
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