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  • Unreported Judgment

Monty on Montague Pty Ltd v Commissioner for Liquor and Gaming

 

[2020] QCAT 129

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Monty on Montague Pty Ltd v Commissioner for Liquor and Gaming [2020] QCAT 129

PARTIES:

Monty on montague pty ltd ATF the Monty on Montague Trust t/as Montague Hotel West End

(applicant)

v

commissioner for liquor and gaming

(respondent)

APPLICATION NO/S:

GAR106-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

28 April 2020

HEARING DATE:

18 October 2019

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The Commissioner for Liquor and Gaming’s decision of 19 February 2019 to refuse the application for a change in the licensed area is confirmed.

CATCHWORDS:

GAMING AND LIQUOR – LIQUOR – GENERALLY – PREMISES TO WHICH LICENCE EXTENDS – administrative review – merits review of decision to refuse application for a change in the licensed area of the main premises of a hotel to include nearby detached bottle shop premises – whether information provided to the Tribunal constituted ‘new’ evidence for which leave was required or could be received as information to which the Commissioner and agency staff would have access by having access to the premises the subject of the application – whether the proposed increased licensed premises are appropriately defined and form one premises – factors considered in exercise of discretion

Acts Interpretation Act 1954 (Qld), s 14A

Liquor Act 1992 (Qld), s 3, s 4, s 33, s 34, s 42A, s 60, s 154

Liquor Regulation 2002 (Qld), s 7

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 20, s 21, s 24

Davy v Chief Executive of the Liquor Licensing Division [1998] 1 Qd R 586

Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13

Jimmy’s On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation [2017] QCAT 282

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Liquor Stores Association & Anor v Angas Park Hotel (1999) 74 SASR 187

London General Omnibus Co. Ltd. v Lavell (1901) 1 Ch. 135

Tapp & Tapp v ALH Group Pty Ltd & Anor (2000) 76 SASR 397

The Gresham Bar and other licensed premises v Commissioner for Liquor and Gaming Regulation [2017] QCAT 419

Vicpoint Pty Ltd v Liquor Licensing Division [2008] CCT LR017-07

X v Australian Prudential Regulation Authority (2007) 226 CLR 630

APPEARANCES & REPRESENTATION:

Applicant:

T Jones, Liquor and Gaming Specialists

Respondent:

D Robinson of counsel, instructed by the Office of Liquor and Gaming

REASONS FOR DECISION

  1. [1]
    Monty on Montague Pty Ltd as trustee for Monty on Montague Trust (‘the Trustee’) operates the Montague Hotel at 363 Montague Road, West End (‘the Hotel’ or ‘the Main Premises’).  It also operates three detached bottle shops.  One of them is located nearby at 343 Montague Road, West End (‘the Bottle Shop’).  It unsuccessfully applied to the Commissioner for Liquor and Gaming (‘the Commissioner’) to change the licensed area[1] by increasing the licensed area of the premises of the Hotel under its Commercial Hotel licence to include the Bottle Shop as an on-premises bottle shop forming part of the main licensed premises and, if successful, by decreasing the licensed area by removing the relevant detached bottle shop.[2]  It seeks review of the Commissioner’s decision dated 19 February 2019 to refuse its application.
  2. [2]
    On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.[3]  The Trustee’s submissions contend that the statement of reasons document exhibited bias by the original decision maker.  It is unnecessary for me to make a finding about whether there was bias because this proceeding is a merits review.  There is no presumption that the decision under review is correct.[4]   
  3. [3]
    The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[5]
  4. [4]
    Under the Liquor Act 1992 (Qld) (‘the Act’)[6] the Tribunal is required to make its decision on the basis of the material before the Commissioner and upon the same law that applied at the time the decision was made unless leave to present new evidence is given.[7]  The version of the Act current as at 19 February 2019 was the reprint current as at 19 April 2018.
  5. [5]
    Subsequent to the oral hearing and without the presence of the parties or their representatives, I conducted an external view of the premises the subject of this application and the main comparators to which I was referred, namely, Victoria Point Tavern, Malt, Belmont Tavern and the Newmarket Hotel in order to better understand the evidence before me.

Commissioner’s objections

  1. [6]
    I accept the Commissioner’s objections to the extent that information in the Trustee’s submissions was not supported by other evidence before the Commissioner.  I also accept that the photographs tendered during the hearing would strictly speaking be ‘new’ evidence requiring leave, which was not formally sought.
  2. [7]
    The Commissioner contended that certain paragraphs of the Trustee’s submissions and aerial photographs of the subject premises and comparator sites sourced from Google Maps tendered at the hearing[8] should properly be regarded as ‘new’ evidence and objected to me considering those matters.  Leave for new evidence may only be granted if the Tribunal is satisfied that the party did not know and could not reasonably be expected to have known the existence of the new evidence before the decision and it would be unfair not to allow the party to present the new evidence.[9]  If the Tribunal gives leave the Tribunal must adjourn the proceedings to allow the commissioner to reconsider the decision.[10] 
  3. [8]
    No formal application for leave for new evidence was before me.  The Trustee contends that the evidence was merely clarification evidence and that it should be considered as such similar evidence has previously been considered. 
  4. [9]
    The Tribunal has previously, where there was no objection by the Commissioner, allowed the introduction of some photographs and plans on the basis that:

…the tribunal may apply the knowledge and experience in liquor licensing matters of the Commissioner and of the staff of the Office of Liquor and Gaming Regulation (OLGR)... Since the Commissioner and the OLGR would also have access to the licensed premises if required, the tribunal is able to receive information from the parties about its structure and layout.[11]  

  1. [10]
    The Commissioner contends, and I agree, that the information in the table in the Trustee’s submissions and aerial photographs could have been placed before the Commissioner in the Trustee’s application or the Trustee’s subsequent submissions prior to the Decision.[12] 
  2. [11]
    In relation to the Google Maps aerial view photographs[13] I am not persuaded that they necessarily fall within the category of documents that have been received by the Tribunal, without objection, in previous proceedings on the basis that the Commissioner and the staff of OGLR would have access to the premises the subject of the application or to photographs of approved ID scanners. 
  3. [12]
    The staff of the OGLR may well have had access to aerial photographs of the premises and comparator sites but there is no evidence before me that they did or were likely to have.  Given the requirements for such a State agency to assist the Tribunal, to not act in an adversarial manner and to conduct itself as a model litigant my expectation is that the Commissioner ought not to take such an objection lightly.[14] I note that comparator information was directed to be provided to the former tribunal in Vicpoint Pty Ltd v Liquor Licensing Division[15] (‘Vicpoint case’).  No similar direction was made in this proceeding. 
  4. [13]
    In relation to the aerial photograph of:
    1. (a)
      the Hotel and the Bottleshop,[16] it is similar to other photographs before the Commissioner.[17] As this photograph is an aerial view of the subject premises rather than a ground level photograph it is likely to be somewhat different to ones that have been received by the Tribunal, without objection, in previous proceedings on the basis that the Commissioner and the staff of OGLR would have access to the premises the subject of the application.  Even if I admitted it, I would glean little, if any, information I could not obtain from the other similar photographs in evidence.  
    2. (b)
      Malt,[18] it is similar to another photograph before the Commissioner.[19] Even if I admitted it, I would glean little, if any, information I could not obtain from the other similar photograph in evidence.  
    3. (c)
      Victoria Point Tavern, Newmarket Hotel and Belmont Tavern,[20] even if I admitted them, I would glean little, if any information I could not obtain from the other evidence before the Commissioner and little, if any, better understanding of the other evidence before the Commissioner than I acquired by conducting a view.
    4. (d)
      Chancellor’s Tavern,[21] even if I admitted it, I would glean little, if any, information I could not obtain from the other evidence before the Commissioner.
  5. [14]
    The Trustee’s submissions attempted to tabulate whether or not various factors were present for comparator premises and the premises the subject of the application.[22]  The Commissioner objects to those parts of the table where it is contended that there is no evidence that the information was otherwise before the Commissioner and therefore would constitute ‘new’ evidence and objects to other parts of the table where the Commissioner contends that the information is inconsistent with information in the material before the Commissioner.[23] The Commissioner also objects to the Trustee’s submissions[24] in so far as it is contended it introduces information not otherwise before the Commissioner or is incorrect.
  6. [15]
    The Trustee’s Submissions in Reply[25] urged me to undertake a view of the subject premises and comparators to form a view about whether the information in the submissions was correct.  In proceedings such as these, where section 33 of the Act applies, views are not for the purpose of filling in evidential gaps.  They are to allow the tribunal member to better understand the evidence already before them.[26]
  7. [16]
    I have relied upon the factual evidence before the Commissioner rather than that purportedly contained in any of the tabulations or submissions.

Legislative Background

  1. [17]
    Section 154(1) of the Liquor Act 1992 (Qld) (‘the Act’) provides ‘the owner, licensee or other person in control of licensed premises must not, without the commissioner’s approval, alter, rebuild, change or increase the area of the licensed premises.’
  2. [18]
    ‘Premises’ is relevantly defined non-exhaustively in the Act to include land or a building or structure on or in land.[27]  It does not exclude the ordinary definition of ‘premises’, which usually requires some identifiable physical or visible connection between components.[28]
  3. [19]
    The Act relevantly provides that ‘in giving an approval, the commissioner must have regard to the business that is the principal activity conducted under the licence’.[29] The Act provides no other specific guidance on the factors to be considered by the Commissioner in assessing such applications. 
  4. [20]
    The principal activity in this case is the operation of a commercial hotel.
  5. [21]
    A commercial hotel licence authorises the licensee to sell liquor on the licensed premises, for consumption on or off the premises under specified circumstances.[30]  The licensing of detached bottle shops is provided for in section 60(1)(d) of the Act.  Section 7 of the Liquor Regulation 2002 (Qld) (‘the Regulations’) sets out the circumstances in which the Commissioner may approve premises as detached bottle shops.
  6. [22]
    In interpreting a provision, the interpretation that will best achieve the purpose of the Act is to be preferred.[31]  The objective intention of the legislature is to be derived from the provision viewed in its context.[32]  The relevant context includes other provisions in the Act and the Regulations.
  7. [23]
    The Act has a number of main purposes. They include:[33]
  1. to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way compatible with—
  1. minimising harm, and the potential for harm, from alcohol abuse and misuse and associated violence; and

  1. minimising adverse effects on the health or safety of members of the public; and
  2. minimising adverse effects on the amenity of the community; and
  1. to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change; and

  1. to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of this Act; and
  1. to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence; and

  1. to provide revenue for the State to enable the attainment of this Act’s main purposes and for other purposes of government.
  1. [24]
    The Commissioner is authorised to produce Guidelines.[34]  Guideline 35 provides that the Commissioner, in considering whether to grant an application involving detached buildings or land, must ensure that the licensed premises are able to be appropriately defined and form one premises. It sets out, in a non-exhaustive way, factors considered in determining ‘a premises’.[35] The Tribunal has previously observed:

Guidelines are not legislation.  They set out, in effect, the policy of the chief executive in relation to the matters they cover... if the policy is reasonable and sound, consistency in decision-making makes it desirable that it be followed provided the merits of the matter are considered, and provided that any policy requirements are in accordance with the relevant legislation.  If policy is defective, the decision may be reviewed without regard to the policy.[36]

(References omitted)

  1. [25]
    Guideline 35 was amended following the former Commercial and Consumer Tribunal’s decision in the Vicpoint case.   The Trustee does not contend that the current Guideline 35 is contrary to the Act nor the Vicpoint decision.
  2. [26]
    The former tribunal identified that finding an application falls within section 154 of the Act and should be approved is an exercise of discretion.[37]

Comparators

  1. [27]
    The Trustee contends, and I agree, that it is useful to consider the facts and circumstances where previous approvals have been granted.  Consistency in decision making as identified earlier in these reasons is desirable.[38]  It is, of course, possible that a previous approval was granted in error. 
  2. [28]
    The Trustee contends that section 154 of the Act should be construed in a way consistent with the main purpose to provide a flexible practical system of regulation with minimal technicality and that the Commissioner’s analysis of the factors has produced inconsistencies with previous approvals and a high degree of technicality.
  3. [29]
    The Act has a number of competing main purposes, which each must be given appropriate weight in construing the Act. 
  4. [30]
    Each application is required to be considered on its own facts. The opportunity for apparent inconsistencies is likely to be greater where decision makers exercise discretion after a consideration of the particular facts of each case than where there are clearly prescribed requirements. 
  5. [31]
    As was noted in Tapp & Tapp v ALH Group:[39]

It is not possible or desirable to list the factors which may need to be considered in a given case to determine whether particular components can properly be said to form part of the same premises.  Ultimately, it will be for the licensing authority to decide whether the redefined premises can properly be regarded as part of or an extension of the licensed premises.

  1. [32]
    Neither party referred me to, nor have I been able to identify, any relevant decisions of this Tribunal which substantively considered section 154 of the Act.  Decisions of the former tribunal are highly persuasive.  Where this Tribunal has not considered the relevant section it is appropriate to consider the earlier decisions relied upon by the former tribunal in forming their view. Having done so, I agree with the approach taken by the former tribunal.

Victoria Point Tavern

  1. [33]
    The main premises and the liquor barn are both located on the same real property lot,[40] in the same shopping centre and were separated by the shopping centre outdoor car park, low landscaped gardens and internal access roads.[41] 
  2. [34]
    In the Vicpoint case the former tribunal accepted that there is power to approve an increase in the licensed area where the building proposed to be licensed is not on the same piece of land or not on a contiguous piece of land as the existing premises.  They adopted Muir J’s findings on an earlier version of section 154 of the Act in Davy v Chief Executive of the Liquor Licensing Division[42] that every case should be considered on its own facts.  Muir J noted that whether an approval falls within section 154 of the Act will often involve questions of degree.[43]  He compared a change from one end of a town or suburb at one end of the spectrum with the inclusion of another room or a greater part of the yard at the other end of the spectrum.  The latter clearly involves a much more incremental change.
  3. [35]
    In the Vicpoint case the former tribunal allowed the application on conditions that the tavern, liquor barn and dedicated walkway were painted in a common colour, signage installed on the liquor barn showing it is part of the tavern, signage being placed outside the tavern and liquor barn to indicate the location of the other and the construction of a raised speed bump pedestrian crossing across the internal vehicular access as part of the dedicated walkway.  They were of the view that the conditions would give the two facilities:

the appearance of constituting one place of business or one set of premises. The two facilities will in our view be perceived as “one complex with the appearance of unity” and as having a “physical and functional integrity”.[44]

  1. [36]
    The former tribunal also considered:

that a reasonable person coming for the first time to the Town Centre would perceive that the two buildings with common paint scheme and signage were part of the one business consisting of a tavern and an associated liquor barn.[45]

Malt 

  1. [37]
    The licenced premises are situated on the basement, ground and first floors of 28 Market Street (the original premises) and Shop 1, 10 Market Street, Brisbane (the increased area) and includes a footpath dining area at the front of the premises measuring approximately three metres by two metres.[46]  The increased area is not described as a bottle shop in the licence.[47]
  2. [38]
    The buildings in which the premises are situated are separated by a driveway and are not of similar appearance.[48] There are a number of tenancies which separate the original premises and the increased area.  The approval was subject to signage on both parts of the premises being the same to provide visual connection.  The evidence before me is that this condition has not been satisfied.  This non-compliance does detract from the level of connectedness intended by the approval. There is no evidence before me as to whether or not enforcement action is being undertaken.
  3. [39]
    Both premises are on the same side of the street and only a public footpath connects the two premises.[49]
  4. [40]
    The Trustee contends the subject premises have a greater degree of connectedness than Malt.
  5. [41]
    The footpath dining area somewhat enhances the level of connectedness between the other two parts of the Malt premises. 
  6. [42]
    The different parts of these premises are about the same distance apart as the subject premises but are within buildings which are closer as they are only separated by a driveway.

Belmont Tavern

  1. [43]
    The main premises and a bottle shop are located in a shopping centre.  They are located on the same parcel of land.[50] The bottle shop is located amongst other retail shops and is painted in different colours to the tavern.[51] 
  2. [44]
    The Trustee contends the subject premises have a greater degree of connectedness than the Belmont Tavern premises.
  3. [45]
    There is, however, a clear line of sight from each of the premises to the other across the outdoor shopping centre car park. The co-location in a shopping centre also provides some connectivity.  

Newmarket Hotel

  1. [46]
    This approval pre-dates the Vicpoint case.  The main premises and the drive-through bottle shop are located in a shopping centre.  There is no line of sight between the two premises.[52] The former tribunal described the premises as being separated by the shopping centre.[53]  The co-location in a shopping centre provides some connectivity.    

Chancellor’s Tavern

  1. [47]
    This approval pre-dates the Vicpoint case.  The main premises and the liquor barn are in separate buildings separated by an internal roadway for general shopping centre vehicular traffic.[54]  The premises are not on the same real property lot.[55] The co-location in a shopping centre provides some connectivity.    

Are the Hotel and the Bottleshop appropriately defined and form one premises?

  1. [48]
    I am not satisfied that the proposed increased licensed premises are appropriately defined and form one premises for the purpose of section 154 of the Act. 
  2. [49]
    On the totality of the evidence before me, I am not satisfied that:
    1. (a)
      there is a sufficient identified connection between the Main Premises and the Bottleshop; 
    2. (b)
      a reasonable person coming to Montague Road between Kurilpa and Victoria Streets for the first time would perceive that the two buildings with common paint scheme and signage were part of the one business consisting of a Hotel and an associated bottleshop even if there was enhanced directional signage as proposed.  I find that the perception would be of two separate businesses;
    3. (c)
      the physical and visual characteristics sufficiently reinforce to customers or potential customers that the Hotel and Bottleshop are one business; or
    4. (d)
      the proposed redefined premises can properly be regarded as part of or an extension of the Main Premises and therefore one premises.
  1. [50]
    The Trustee submitted that it would welcome approval of its application upon any reasonable conditions.  Mr Jones submitted that painting the footpath is not open to the Trustee.  There are no conditions, which I believe are reasonably open to me, to address the perception that two separate business are operated from the two premises.

Are the parcels of land involved contiguous or adjacent or close to each other?

  1. [51]
    This is not a factor in favour of granting the application.
  2. [52]
    The Vicpoint case and the decisions relied upon in the Vicpoint case all accept that proximity is an important consideration.  Proximity is a question of degree.
  3. [53]
    The two premises each front Montague Road and are located within the same street block on the same side of Montague Road.  The Hotel is on the corner of Kurilpa Street.  The Bottleshop is on the next corner being Victoria Street.  The two premises are approximately 60 metres apart.  An entrance to the Bottleshop and the main entrance to the Hotel front Montague Road.  They are closer together than some other premises, which have been successful in equivalent applications. 
  4. [54]
    However, they are not located on the same parcel of land or within the same shopping centre complex. They are located in a strip of commercial premises on a main road.  They are not located on adjacent parcels of land nor in adjacent buildings.  They are not so close to be only separated by a driveway or other accessway or road or off-street car park.  They are separated by four buildings of various construction styles and materials. 
  5. [55]
    The submissions suggest that these intervening buildings are constructed on two intervening parcels of land.  There is evidence before me that there are five intervening registered lots, with one of the four buildings constructed across two adjacent lots.[56]    
  6. [56]
    The former tribunal in the Vicpoint case expressly stated[57] that they were applying the principles enunciated by the South Australian Full Court in Liquor Stores Association & Anor v Angas Park Hotel Pty Ltd[58] and Tapp & Tapp v ALH Group Pty Ltd & Anor.[59] In the latter case the Full Court considered that:

The existing hotel together with the proposed bottle shop premises could not, on any view, be regarded as comprising the same premises.  The two areas are physically separated by other buildings.  The proposed components plainly lack that degree of integrity such that one could describe them as comprising the same premises.[60]      

  1. [57]
    It also considered that complementary signs could not ‘of themselves, convert to a single set of premises what are otherwise two plainly distinct premises’.[61]  
  2. [58]
    The former tribunal in the Vicpoint case clearly considered that on the facts of that case, where there were no intervening buildings, the conditions imposed including complementary signage and a common colour of both buildings and the designated walkway were sufficient. The former tribunal placed considerable emphasis on the connectivity provided by the designated walkway painted in the same colour as the tavern and the liquor bar. 
  3. [59]
    The different parts of Malt’s premises are about the same distance apart as the subject premises but they are within buildings which are closer as they are only separated by a driveway.
  4. [60]
    The separation by four buildings weighs against the two premises being able to be perceived as ‘one complex with the appearance of unity’.

Is there an identifiable connection between the components usually of a physical or visual type?

  1. [61]
    I accept there is some but limited degree of connection. This is not a factor strongly in favour of granting the application.  I am not satisfied that the Hotel and the Bottleshop stand out from their surrounds to create a physical unity.

Line of sight

  1. [62]
    This is not a factor strongly in favour of granting the application.  I find that there is some but limited line of sight between the premises.
  2. [63]
    The premises are on the same side of Montague Road.  The Trustee points to a line of sight between the premises.  The evidence is that the Bottleshop building can be seen from the designated smoking area (DOSA) in the Main Premises and the outdoor licensed area in front of the DOSA and when standing outside the Bottleshop advertising on the wall of the Main Premises can be seen.[62] 
  3. [64]
    In the Vicpoint case there was a clear line of sight from each of the premises across the outdoor carpark and internal vehicular access way to the other. 
  4. [65]
    The line of sight from each of the premises is restricted by being on the same side of Montague Road, the intervening buildings, signage for businesses on the intervening parcels of land and vegetation on the intervening parcels of land or footpath.[63]
  5. [66]
    Both parts of Malt’s premises are also on the same side of the street.[64] There was no specific evidence of the line of sight between the Malt premises in the material before the Commissioner.  The photographs in evidence do not show the same extent of visual interference between the parts of Malt’s premises as that shown in the photographs of the subject premises.[65]  Malt’s footpath dining area somewhat enhances the level of connectedness between the other two parts of the premises.   

Common colouring, distinct buildings and complementary signage

  1. [67]
    This is not a factor strongly in favour of granting the application.
  2. [68]
    I accept there is some degree of commonality between the colouring scheme and branding of the Bottleshop and the Hotel. 
  3. [69]
    The Trustee contends that a sufficient connectivity exists as both premises have a distinct white and black colour scheme and signage has a common style.  The Trustee points to other approvals where approvals were granted without the requirement for common colouring and styling.  In exercising the discretion all factors are required to be weighed. The circumstances will affect the weight attached to each factor. 
  4. [70]
    The Trustee contends that the locations of the premises on the corners of the same street block make the premises standout to passers-by, patrons and customers creating a visual connection enhanced by the common colour scheme. This essentially combines the proximity factor with the visual connection factor.
  5. [71]
    Although the four intervening buildings are not white with black, the evidence is that a number of buildings in the vicinity including two of the intervening buildings are painted white or a similar light colour. 
  6. [72]
    The evidence also is that the common colouring is to a degree lessened by the colours of product advertising on the premises walls.  Whilst the products advertised on both premises are in the main different beer products, the advertising of alcoholic beverages on both premises does not necessarily suggest an identifiable connection.
  7. [73]
    The Trustee contends that the Hotel and Bottleshop buildings are distinct from the intervening buildings.  I accept that they are different in architectural style from the intervening buildings but the two premises are also substantially different from each other.  The Hotel is a modern styled construction and the Bottleshop is of a more heritage styled construction. 
  8. [74]
    The Trustee contends that there is a level of connectivity in the names used on both premises.  I accept that the word Montague appears in both names.  The Bottleshop is named after the street corner at which it is located.  It therefore includes the word Montague as does the Main Premises but that is not particularly distinctive.  Other premises in the vicinity also include the name Montague in their trading names. 
  9. [75]
    The Trustee points to chalk boards being placed on the footpath to advertise specials in front of both premises.  I accept that this methodology in advertising is similar.  The evidence is that other intervening businesses also use footpath boards to advertise.[66] This detracts from establishing an identifiable connection.
  10. [76]
    The Trustee contends that the signage on the two premises are similar in colour scheme and branding. I accept that branding is similar as the logos are the same shape and colour and use a common font.   
  11. [77]
    I accept that the Bottleshop is advertised on the Hotel’s website and similar slogans for the Bottleshop and Hotel are used in advertising and that there is cross advertising in each of the premises. 
  12. [78]
    I also accept that there is a common staff uniform and some staff are shared between the premises. 
  13. [79]
    The Trustee submits that if successful it will install directional signage between the two premises utilising logos and branding to accentuate the connection.  I accept that such directional signage will provide some further connectivity.
  14. [80]
    In the Vicpoint case the tavern, liquor barn and connecting walkway were painted in a common colour.  Whilst there is a footpath and a lane that connects the two premises, these are public access ways.  They do not provide a distinct connection.

Do the separate components have a physical or functional unity or integrity?

  1. [81]
    I accept there is some but limited degree of physical or functional unity.  This is not a factor strongly in favour of granting the application.
  2. [82]
    The Trustee points to the connection between the two premises as the public footpath along Montague Road and the laneway to the rear of the premises.  These permit customers to safely walk between the two premises.   
  3. [83]
    The car park at the Hotel is available for use by patrons of both the Hotel and the Bottleshop.  Car parking along the laneway services both premises but as public parking would not be exclusive to these businesses.   
  4. [84]
    Unlike the Vicpoint case both access ways are public as distinct from private.  There is no suggestion that the connection can be emphasised by a painted walkway as was required in the Vicpoint case.
  5. [85]
    The Trustee contends that if approved they would install directional signage.  I accept that such directional signage will provide some but limited connectivity.  Given the intervening buildings and the extent of visual interference referred to earlier in these reasons I am not satisfied that a reasonable person travelling along Montague Road would see the signs and make the connection between the premises.

Do the components appear to constitute one place of business and give the appearance of oneness?

  1. [86]
    Weighing all of the evidence set out above, I find that the Hotel and the Bottleshop do not give the appearance of one place of business.  This is not a factor in favour of granting the application.

Summary

  1. [87]
    I find that none of the factors are strongly in favour of granting the application and two are not in favour of granting the application.  The decision to refuse the application should be confirmed.

Other factors

  1. [88]
    The Commissioner in refusing the application considered that:
    1. (a)
      the Bottleshop was appropriately approved as a detached bottle shop under the specific provision for detached bottle shops;[67] and
    2. (b)
      approval would allow the licensee to seek approval for a further detached bottle shop, which would undermine the intention of the Act to limit licences to no more than three detached bottle shops.
  1. [89]
    The Trustee contends they are not relevant considerations.
  2. [90]
    In coming to my view that the exercise of the discretion is not appropriate on the facts of this case I did not consider it necessary to have regard to such matters. A consequence of this finding, in the circumstances of this case, is that I agree that the Bottleshop is appropriately licensed as a detached bottleshop. 
  3. [91]
    The mere fact that the Bottleshop was currently approved as a detached bottleshop and if approved would allow the licensee to seek approval for a third detached bottleshop would not, in my view, prevent the exercise of the discretion if, on the facts of the case and weighing the totality of the evidence, it was appropriate to exercise the discretion under section 154 of the Act.
  4. [92]
    In view of the competing nature of the main purposes of the Act, which include to minimise harm from alcohol abuse, provide revenue for the State and provide a flexible, practical system for regulation, and the lack of specific criteria set out in the Act for the exercising of the discretion under section 154 of the Act I accept that such matters may be relevant considerations. 
  5. [93]
    The approval would reduce revenue to the State by the amount of the separate detached bottleshop annual fee.  It also may invite an application for a third detached bottle shop, which would potentially re-instate the lost fee if issues relevant to that application, including amenity, harm and appropriate control could be adequately addressed by the applicant. 

Footnotes

[1]Liquor Act 1992 (Qld), s 154 (‘the Act’).

[2]Application received 30 July 2018, Exhibit 6, p 1-23.

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 (‘QCAT Act’).

[4]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[5]QCAT Act, s 20.

[6]The Act, s 33.

[7]Ibid, s 34.

[8]Exhibit 4.

[9]The Act, s 34.

[10]Ibid, s 34(2).

[11]Jimmy’s On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation [2017] QCAT 282, [18]. Also, in The Gresham Bar and other licensed premises v Commissioner for Liquor and Gaming Regulation [2017] QCAT 419, [6] the Tribunal allowed photographs and plans of the premises and photographs of approved ID scanners.

[12]Exhibit 6, p 39-44 and p 83-86.

[13]Exhibit 4.

[14]QCAT Act, s 21; QCAT Practice Direction No 3 of 2013.

[15][2008] CCT LR017-07.

[16]Exhibit 4, p 1 of 6.

[17]Exhibit 6, p 70, p 76.

[18]Exhibit 4, p 6 of 6.

[19]Exhibit 6, p 86.

[20]Exhibit 4, p 2, 3 and 4 of 6.

[21]Ibid, p 5 of 6.

[22]Exhibit 2, [14]. The table was expanded and modified by both parties during the course of the submissions and hearing. See attachments to Exhibits 7, 3 and 8.

[23]Exhibit 8, attachment.

[24]Exhibit 2, [24], part [25], part [36] and [38].

[25]Exhibit 3.

[26]London General Omnibus Co. Ltd. v Lavell (1901) 1 Ch. 135.

[27]The Act, s 4(a), s 4(b).

[28]Tapp & Tapp v ALH Group Pty Ltd & Anor (2000) 76 SASR 397, 400.

[29]The Act, s 154(2)(a).

[30]Ibid, s 60.

[31]Acts Interpretation Act 1954 (Qld), s 14A.

[32]X v Australian Prudential Regulation Authority (2007) 226 CLR 630.

[33]The Act, s 3.

[34]Ibid, s 42A.

[35]Exhibit 6, p 77.

[36]Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13, [37].

[37]Ibid, [40].

[38]QCAT Act, s 4(d).

[39](2000) 76 SASR 397, 401.

[40]Exhibit 6, p 141.

[41]Exhibit 6, p 99 – p 100; Vicpoint [2008] CCT LR017-07, [23] – [28].

[42][1998] 1 Qd R 586.

[43]Ibid, 590-591.

[44]Vicpoint [2008] CCT LR017-07, [39].

[45]Ibid, [35].

[46]Exhibit 6, p 130.

[47]Ibid.

[48]Ibid, p 86.

[49]Ibid.

[50]Ibid, p 132.

[51]Ibid, p 44.

[52]Ibid, p 103, [38]; Vicpoint [2008] CCT LR017-07, [38].

[53]Vicpoint [2008] CCT LR017-07, [38].

[54]Exhibit 6, p 103, [37]; Vicpoint [2008] CCT LR017-07, [37].

[55]Exhibit 6, p 138.

[56]Exhibit 6, p 70.

[57][2008] CCT LR017-07, [39].

[58](1999) 74 SASR 187.

[59](2000) 76 SASR 397.

[60]Ibid, 402.

[61]Ibid.

[62]Exhibit 6, p 47.

[63]Exhibit 6, p 51, p 71.

[64]Ibid, p 86.

[65]Ibid, compared with p 51 and p 71.

[66]Exhibit 6, p 71.

[67]The Act, s 60(1)(d).

Close

Editorial Notes

  • Published Case Name:

    Monty on Montague Pty Ltd atf The Monty on Montague Trust t/as Montague Hotel West End v Commissioner for Liquor and Gaming

  • Shortened Case Name:

    Monty on Montague Pty Ltd v Commissioner for Liquor and Gaming

  • MNC:

    [2020] QCAT 129

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    28 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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