Hayes v Surfers Paradise Rock and Roll Cafe Pty Ltd
[2010] QCA 48
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- Unreported Judgment
- Appeal Determined (QCA)
- Hayes v Surfers Paradise Rock and Roll Cafe Pty Ltd[2010] QCA 48
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Hayes v Surfers Paradise Rock and Roll Cafe Pty Ltd[2010] QCA 48
Reported at [2011] 1 Qd R 346
Hayes v Surfers Paradise Rock and Roll Cafe Pty Ltd[2010] QCA 48
Reported at [2011] 1 Qd R 346
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | |
DELIVERED ON: | 12 March 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 February 2010 |
JUDGES: | McMurdo P and Fraser and Chesterman JJA |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN ALLOWED TO BE RAISED ON APPEAL – OTHER MATTERS – OTHER CASES – where the appeal turned upon the meaning of ordinary words in their regulatory context – the meaning of the words “spruiking” and “touting” in the condition implied by s 29(d) Liquor Regulation 2002 (Qld) prohibiting “spruiking or touting for business involving adult entertainment” – the meaning of the expression “describes the sexually explicit nature of the acts performed in the entertainment” in the prohibition relating to advertising in s 168A(1) Liquor Act 1992 (Qld) – whether the conduct of the first respondent’s employee constituted “spruiking or touting” contrary to the condition imposed in the first respondent’s permit by s 29(d) Liquor Regulation 2002 (Qld) – whether the publication of each card held by the first respondent’s employee was a publication describing “the sexually explicit nature of the acts performed in the entertainment” within the meaning of s 168A(1) Liquor Act 1992 (Qld) – whether the Magistrate erred in acquitting the first respondent of the breaching the condition of its permit prohibiting “spruiking or touting” –whether the judge erred in remitting the first respondent’s breach of s 168A(1) Liquor Act 1992 (Qld) to the Magistrate’s Court for determination APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the appellant appealed under s 118 District Court of Queensland Act 1967 (Qld) against orders made in the District Court on appeal from the Magistrates Court – whether leave to appeal should be granted – whether the construction questions raised by the appeal were of sufficient substance and public importance to justify the grant of leave to appeal District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222, s 223, s 225 Liquor Act 1992 (Qld), s 3, s 4, s 109(6)(c), s 103E, s 103G(1), s 103H, s 107C, s 168A, s 226(a), s 235(2)(k), s 235(3) Prostitution Act 1999 (Qld), s 73(1) Liquor Regulation 2002 (Qld), s 29, s 29(d) Uniform Civil Procedure Rules 1999 (Qld), r 388, r 661(4)(b), r 667, r 754, r 755, r 756, r 766(6) ACI Operations Pty Ltd v Bawden [2002] QCA 286, cited Behrendt v Burridge [1976] 3 All ER 285; [1977] 1 WLR 29, cited Chief Executive, Department Tourism, Fair Trading and Wine Industry Development v 4 Play (Oz) Pty Ltd [2008] 2 Qd R 436; [2008] QCA 267, cited Environment Protection Authority v Bowport All Roads Transport Pty Limited [2009] NSWLEC 103, cited Hayes v Surfers Paradise Rock and Roll Café Pty Ltd & Anor [2009] QDC 214, cited MZXMM v Minister for Immigration [2007] FMCA 975, cited Parsons v Raby [2007] QCA 98, cited Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, cited Widgee Shire Council v Bonney (1907) 4 CLR 977; [1907] HCA 11, considered |
COUNSEL: | J Henry SC, with R Frigo, for the appellant P J Davis SC, with C F C Wilson, for the respondents |
SOLICITORS: | Department of Employment, Economic Development and Innovation for the appellant Hopgood Ganim for the respondents |
[1] McMURDO P: I agree with Fraser JA’s proposed orders and his reasons for them.
[2] FRASER JA: Mr Hayes has applied under s 118 of the District Court of Queensland Act 1967 (Qld) for leave to appeal against orders made in the District Court on appeal from the Magistrates Court. I will identify the issues raised by his application and proposed appeal after I have first set out the narrow factual background to the litigation.
Background
[3] The following description of the factual background is taken from the magistrate’s comprehensive findings. Those findings were not challenged in the District Court or in this Court.
[4] Mr Hayes is an investigator employed by the Liquor Licensing Division. The first respondent company (“SPRRC”) conducts an “adult entertainment” business within its Gold Coast “Crazy Horse” nightclub under a permit issued under the Liquor Act 1992 (Qld). The second respondent (Mr Mick Pikos) is SPRRC’s nominee under that permit. At about 9.00 pm on 17 November 2006 Mr Hayes and a Sergeant of Police, Sgt St Clair, saw an employee of SPRRC, Ms Gemma Smith, standing near a money exchange booth in Orchid Avenue some distance from SPRRC’s Crazy Horse Nightclub. Sgt St Clair and Mr Hayes saw Ms Smith give cards to passers-by on two or three occasions, each time saying something to the person who took the card. When Mr Hayes walked towards Ms Smith she handed him a card and said: “Half price entry to Crazy Horse”. The card advertised “Crazy Horse” for “Adults Only”, it promised “Continuous Striptease” and “Private Lap Dancing Room!”, and offered the inducement of “½ price entry before midnight with this card”. Ms Smith had 140 of those cards in her hands. Ms Smith was respectably dressed and she appears to have behaved politely throughout. She stood on the footpath and did not walk towards any person to hand out the cards. Rather, as persons walked past the place where she was standing Ms Smith extended her hand with a card in it. When she spoke to passers-by she did not shout or talk loudly. What she said could be heard only by one in her immediate vicinity. Because she said, “Half price entry to Crazy Horse” to Mr Hayes, she might have said something along those lines to the other persons to whom she handed out the cards, but there was no evidence that she said anything else of significance. Mr Hayes and Sgt St Clair accompanied Ms Smith to the nightclub and spoke to a manager, Mr Chris Pikos. He told them that the nominee (the second respondent) was not present. Mr Chris Pikos said that he was the manager of the nightclub that night and that he had asked Ms Smith to hand out the cards in the street.
[5] Ms Smith’s conduct formed the basis of two counts[1] in complaints made by Mr Hayes in the Magistrates Court in September 2007 against SPRRC and Mr Mick Pikos.
[6] Section 226(a) of the Act provides that “[a] person who contravenes a condition specified in… a licence or permit… commits an offence against this Act”. Section 29(d) of the Liquor Regulation 2002 (Qld) (which I will call “the Regulation”) made every adult entertainment permit subject to prescribed conditions, including that:
“(d)the permittee must ensure that spruiking or touting for business involving adult entertainment occurs only on the permittee’s premises and only on parts of the premises from which the spruiking or touting is not audible or visible to a person who is not on the premises;”
[7] SPRRC’s permit included the following condition:
“The permittee must ensure that spruiking or touting for business does not occur outside or in the proximity of, the premises.”
[8] Count 1 of the complaint against SPRRC charged an offence against s 226 constituted by Ms Smith’s alleged “spruiking or touting”[2] contrary to the condition in the permit. The differences between the Regulation and the form of the condition in the permit are not material for present purposes. In what follows I will refer to the terms of the condition imposed in every permit by the regulation but my conclusions are equally applicable in relation to the different wording that appears in the permit.
[9] Count 2 charged SPRRC with a contravention of s 168A(1) of the Act, which provides that “A person must not publish an advertisement for adult entertainment that describes the sexually explicit nature of the acts performed in the entertainment”.
[10] The complaint against Mr Pikos charged that s 109(6)(c) of the Act rendered him guilty of offences in relation to both counts charged against SPRRC. At the relevant time s 109(6) provided:
“(6)In the conduct of business on premises to which a licence or permit relates a nominee in respect of the licence or permit that relates to the premises-
(a)is responsible for ensuring that-.
(i)liquor is supplied or possessed on the premises only in accordance with the authority conferred by the licence or permit; and
(ii) for an adult entertainment permit, the conduct of entertainment under the permit is in accordance with this Act and the conditions of the permit; and
(b) is subject to the obligations imposed by this Act on the licensee or permittee; and
(c) is liable as a licensee or permittee for an offence against this Act or for any failure to perform any of such obligations.”
[11] After a hearing occupying one and a half days, the magistrate acquitted SPRRC of count 1 but convicted it of count 2. The magistrate acquitted Mr Pikos of both counts on the grounds that SPRRC was not guilty of count 1 and that s 109(6)(c) did not render Mr Pikos liable for SPRRC’s contravention charged in count 2. Mr Hayes appealed to the District Court against the orders dismissing the complaint of count 1 against SPRRC and the order dismissing the complaint of both counts against Mr Pikos. SPRRC appealed against its conviction on count 2. Newton DCJ dismissed Mr Hayes’ appeal but allowed the appeal by SPRRC against its conviction on count 2. In SPRRC’s appeal the judge made the following orders:
“1. Appeal allowed
2. Convictions of Surfers Paradise Rock and Roll Café
Pty Ltd and Mick Pikos set aside
3. Matter remitted to Magistrates Court before a Magistrate other than original presiding Magistrate.
4. Respondent (Hayes) to pay the costs of appellants in such amounts and within such time as are determined by this Court.”
The main issues in the proposed appeal
[12] The main issues in the proposed appeal turn upon the meaning which some ordinary words bear in the regulatory context in which they appear: first, the word “touting” in the condition implied by s 29(d) of the Regulation which prohibited “spruiking or touting for business involving adult entertainment” outside the area described in the permit, and secondly, the meaning of the expression “describes the sexually explicit nature of the acts performed in the entertainment” in the prohibition of advertising such descriptions found in s 168A(1) of the Act. A third question, whether Mr Pikos might be found liable under s 109(6)(c) of the Act, would fall for decision only if the Court’s conclusion on one or both of the first two questions were adverse to SPRRC. It will also be necessary to discuss some other, less significant points agitated by the parties.
Leave to appeal
[13] SPRRC and Mr Pikos argued that Mr Hayes should not be given leave to appeal because the alleged offences are not serious, Mr Hayes has already had the benefit of two hearings, SPRRC and Mr Pikos have already incurred great expense in the litigation, the Court should be disinclined to allow an appeal against the acquittal on count 1 entered by the magistrate and affirmed in the District Court, and, so the respondents contend, the judge was right to affirm the acquittal. There are competing considerations which favour a grant of leave to appeal. Mr Hayes’ contentions about the construction questions are not insubstantial and they have a significance which extends well beyond the interests of the parties. All persons conducting “adult entertainment” businesses in the State may be affected by these regulatory provisions and those provisions are designed to serve the public interest.
[14] In ACI Operations Pty Ltd v Bawden [2002] QCA 286 at p 4, McPherson JA observed that the criteria for leave expressed in the repealed form of s 118 of the District Court of Queensland Act 1967 (Qld) (“an important point of law or question of general or public importance”) are not entirely irrelevant to applications of this kind, and that the existence of such a consideration remains a sufficient, but not a necessary, prerequisite to a grant of leave to appeal under the present section. In my view the construction questions in this proposed appeal are of sufficient substance and public importance to justify the grant of leave to appeal.
Procedural issues
[15] It is first necessary to discuss some procedural issues.
[16] Mr Hayes sought to bring an appeal without first filing the orders the subject of his proposed appeal or obtaining the Court’s leave to bring that appeal without filing the orders. Although Mr Hayes necessarily sought leave to appeal rather than instituting an appeal, in accordance with the Court’s present practice the application was argued on the basis that if leave were granted the Court would dispose of the appeal without a further hearing. In that situation the Uniform Civil Procedure Rules 1999, r 661(4)(b), effectively required Mr Hayes to ensure that the orders against which he sought to appeal were filed either before he applied for leave or at least before the hearing of that application. That course should have exposed the deficiencies in the orders identified in the next paragraph. At the hearing of the appeal the Court directed Mr Hayes to file the orders. The orders were duly filed and there was no opposition to the Court granting Mr Hayes the necessary leave under r 661(4)(b). I would grant that leave.
[17] Next, the respondents pointed out that order 2 in SPRRC’s appeal to the District Court (set out earlier in these reasons) purported to set aside a conviction or convictions of Mr Pikos although he had been acquitted of both counts charged against him. The judge’s reasons did not discuss Mr Hayes’ appeal against the magistrate’s acquittal of Mr Pikos and the orders did not finally determine that appeal. Senior counsel for SPRCC and Mr Pikos accepted that Mr Hayes should be given leave to appeal for the limited purpose of this Court correcting the orders. The Court should ordinarily decline to grant leave merely for such a purpose. In the usual course, slips of that nature should be promptly addressed in the court that made the orders, under the procedural rules which are designed for that purpose: see the UCPR rr 388 and 667. The point has no enduring significance though if, as I would hold, the Court should in any event grant leave to appeal to consider the merits of the case.
[18] It is necessary also to say something about the scope of the orders which might be made in the proposed appeal. Mr Hayes contends that this Court should allow his appeal and enter convictions against SPRRC and Mr Pikos on each count and (after receiving further submissions) impose penalties. SPRRC and Mr Pikos seek the orders which are necessary finally to resolve the proceedings by acquittals in their favour on all counts. In particular, SPRRC argued that if Mr Hayes were granted leave to appeal this Court should enter a verdict acquitting it on count 2. They submit that this course is authorised by rules 754, 755, 756 and 766(6) of the UCPR despite the absence of any cross-appeal by SPRRC. Mr Hayes did not contest that submission. It is sufficient therefore merely to record my view that the Court should make orders designed to bring these protracted proceedings to a conclusion in a way that is consistent with the Court’s resolution of the merits.
[19] I turn now to the merits of Mr Hayes’ proposed appeal.
SPRRC: Count 1 (“Spruiking or Touting”)
[20] The question for the magistrate was whether Ms Smith’s conduct constituted “spruiking or touting for business involving adult entertainment” contrary to the condition imposed in SPRRC’s permit by s 29(d) of the Regulation.
“Spruiking”
[21] The magistrate concluded that although behaviour such as beckoning or gesturing may or may not be involved in spruiking it would be difficult to “spruik” without raising one’s voice. Having regard to the evidence that at the time of the alleged offence Ms Smith spoke in a conversational tone to Mr Hayes, that when she spoke to other persons her voice could not be heard across the street, and that she did not gesture in such a way as to draw attention to herself, the Magistrate was not satisfied beyond a reasonable doubt that she was “spruiking… for business”. Mr Hayes did not put that conclusion in issue in the District Court or in this Court. It is also consistent with the Macquarie Dictionary[3] entry for “spruik”:
“spruik/spruk/ verb (i) Colloquial 1. to harangue or address a meeting: *This time, the candidates will be forced to return to basics - door-knocking, baby-kissing, glad-handing during street-walks, visits to shopping malls and pubs, perhaps street-corner spruiking - WEST AUSTRALIAN, 1992. 2. to harangue prospective customers to entice them into a show, strip joint, shop, etc.: *In Chinatown they are now subtly spruiking for custom - HERALD, 1990. [origin uncert.;? from D spreken speak] - spruiker, n.”
[22] The second meaning is particularly apt in the present context and it accords with my own understanding of the relevant sense of the term.
“Touting”
[23] Like the word “spruiking”, “touting” is not defined in the Act, the Regulation, or the permit. The magistrate reasoned that according to dictionary definitions, in order to “tout”, a person must actively engage to exert some pressure, however subtle, upon a potential customer; in circumstances in which the Act and Regulation include specific prohibitions in relation to advertising. Touting for business must mean something other than advertising for business (although that did not mean that the concepts were mutually exclusive[4]) and Ms Smith did not force herself upon passers-by or earnestly or persistently urge them to take the cards and go to the nightclub, but rather stood still, handed the cards only to persons who took them as she extended her hand, did not force the cards upon anyone or urge anyone to take the cards and go to the nightclub but merely uttered the words “½ price entry to Crazy Horse” in a conversational tone. In those circumstances whilst Ms Smith handed out advertisements for the nightclub the magistrate was not satisfied beyond reasonable doubt that she was touting for business.
[24] In the District Court Mr Hayes contended that the magistrate was mistaken in finding that proof of “touting” required evidence of a person actively engaging to exert pressure upon a potential customer, and alternatively, in failing to find that the prosecution evidence did establish beyond reasonable doubt that SPRRC, by Ms Smith, engaged in “touting”, by actively engaging to exert pressure upon a potential customer. In rejecting those contentions the District Court judge observed:[5]
“In my view, however, in the light of the findings made by the learned Magistrate, which were clearly open to him to make on the evidence placed before him, no error has been demonstrated with respect to his construction of the term “touting”. The meaning to be ascribed to the term as held by the learned Magistrate finds sufficient support in the dictionary references identified in the reasons for decision. It was, in my opinion, quite permissible for the Magistrate to have reference to entries in the Oxford and Macquarie dictionaries to assist in ascertaining the meaning “tout” in circumstances where no assistance was provided by the legislature in defining the term in question. I am not persuaded that there has been any error in the reasoning of the learned Magistrate as to the meaning of the terms “tout” or “touting” such as to warrant interference by this Court.”
[25] In this Court Mr Hayes argued that the judge erred by asking only whether there was an error in the magistrate’s process of reasoning rather than deciding the point for himself. Pursuant to s 223 of the Justices Act 1886 (Qld), the appeal to the District Court from the magistrate under s 222 was to proceed by way of rehearing on the evidence given in the proceedings in the Magistrates Court. On such an appeal the District Court Judge is required to review the evidence, to weigh any conflicting evidence, and to draw his or her own conclusions. Whilst the judge should give due deference to the magistrate’s decision and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, the judge must reach his or her own conclusion.[6] In my respectful opinion the judge performed that statutory task. His statement that the magistrate’s findings were “open to him to make on the evidence”[7] referred to the findings which were not in issue in the District Court about what Ms Smith said and did. The observations that no error had been demonstrated in the magistrate’s construction of the term “touting”, and that the meaning ascribed to that term by the magistrate found sufficient support in the dictionary references were, perhaps, ambiguous but in their context they conveyed the judge’s conclusion that the magistrate’s conclusion was correct for the reasons he gave.
[26] Mr Hayes also contended that the judge erred in failing to address the alternative ground of appeal that the evidence established beyond reasonable doubt that SPRRC, by its employee Ms Smith, was “touting” because she was exerting pressure upon a potential customer. This argument should be rejected. Having regard to the magistrate’s findings of fact and his conclusion that SPRRC did not breach the condition as the magistrate construed it, the magistrate implicitly found that there was no such pressure. There is no basis for challenging that finding. It was the correct inference from the facts found by the magistrate. Although the judge did not explicitly address this point, a reading of his reasons as a whole conveyed that he had reached the same conclusion.
[27] I return to the question whether the magistrate’s construction of the condition implied by the Regulation was correct. As I have mentioned, the Regulation uses the undefined term “touting” as an ordinary English word with no technical meaning. Its proper construction must therefore be determined by reference to the ordinary meaning of that word, with the assistance of dictionary definitions if necessary, and having regard to its context. It is not suggested that the legislative history or decided cases about the meaning of the word are of assistance in this particular context. Nor did counsel cite other statutes which might shed light upon the question.
[28] The Macquarie Dictionary[8] defines “tout” as follows:
“tout/taut/ verb (i) 1. to solicit business, employment, votes, etc., importunately. 2. Racing to sell betting information, take bets, etc., especially in public places. 3. to spy on a racehorse, etc., to obtain information for betting purposes - verb (t) 4. to solicit support for importunately. 5. to describe or proclaim, especially favourably: to tout a politician as a friend of the people. 6. to sell information on (a racehorse, etc.). 7. to spy on (a racehorse, etc.) in order to gain information for betting purposes. 8. to watch; spy on - noun 9. one who solicits custom, employment, support, etc., importunately. 10. one who spies on racehorses, etc., to gain information for betting purposes, or who gives tips on racehorses, etc., as a business…”
[29] In some contexts the word “tout” is used pejoratively. The seventh meaning given in the Macquarie Dictionary “to spy on (a racehorse, etc.) in order to gain information for betting purposes …” certainly suggests scope for such a meaning. The other senses of the word given in the Macquarie do not necessarily connote discreditable conduct though they do suggest at least potentially irritating or annoying behaviour for those who have no interest in buying what is touted.[9]
[30] Mr Hayes relied upon the fifth meaning (“to describe or proclaim, especially favourably: to tout a politician as a friend of the people”) but that does not seem to capture the essence of what Ms Smith did in trying to solicit custom for her employer. The first meaning (“to solicit business, employment, votes, etc., importunately”) does refer to the solicitation of business but Ms Smith’s conduct did not include such persistence, repetition, pursuit, pestering, obstruction of potential customers or other conduct which might constitute that “importuning” which is an element of “touting” in that sense. On the facts found by the magistrate, Ms Smith behaved passively, perhaps surprisingly so for one engaged to solicit custom for such a business. Her style of dress did not itself distinguish her as a walking advertisement for the “adult entertainment” on offer. She stood in the same place throughout. She simply held a pile of cards in her hand, held out one to each of the few potential customers who approached her post, quietly offered “half price entry” to the nightclub, and handed over a card to those who wished to take it. On these findings of fact by the magistrate it could not be said that she behaved at all importunately.
[31] There are, however, definitions in other dictionaries which omit any reference to importunate or similar behaviour as a necessary ingredient of “touting”.
[32] The Oxford English Dictionary[10] defines the word “tout” as follows:
"1.A thieves’ scout or watchman. slang
- One who solicits custom
- (More fully racing tout.) One who surreptitiously watches the trials of race-horses, so as to gain information for betting purposes…
3.a.intr. To look out busily for customers; to solicit custom, employment, etc. importunately; also, U.S., Austral., etc., to canvass for votes.
b.trans (a) To importune (a person) in a touting manner; (b) to solicit custom for (a thing), to try to sell; also (U.S.) in extended sense, to recommend.”
[33] The third of those senses (which relevantly refers to the intransitive verb) is hardly distinguishable from the relevant sense given in the Macquarie Dictionary. The second meaning provides some support for Mr Hayes’ contention although it refers to the noun form. More direct assistance for his contention is provided in the meanings given for the intransitive verb in the Oxford Australian Dictionary[11], particularly in the first item:
“Tout/taut/ v. & n. v. 1 intr. (usu. foll. by for) attempt to sell (something), typically by a direct or persistent approach (touting for business). 2 a intr. (foll. by for) esp. US & Aust. solicit for (support, votes, etc.) (touting for votes in marginal seats). b tr. try to sell (touting vacuum cleaners door-to-door). c tr. proclaim the advantages of (a place, thing, etc.) for commercial reasons (ads touting New South Wales as a tourist paradise). d tr. recommend, push the candidacy etc. of) a person (is busy touting his mate as next captain). 3 intr. a spy out the movements and condition of racehorses in training. b offer racing tips for a share of the resulting profit. 4 (as touted adj.) (usu. with qualifying adv.) vaunted, extolled (the much touted new drug offensive). n. a person employed in touting. touter n. (ORIGIN Middle English tute "look out" = Middle English (now dialect) toot (Old English totian) from Germanic.]”
[34] Mr Hayes’s counsel supplied the Court with the following additional definitions:
“‘Collins Pocket Dictionary [R501] – ‘…2. recommend (a person for thing)…;’
‘Australian Pocket Oxford Dictionary [R571] – ‘person soliciting custom for hotels, shops, gambling places …’;’
‘Webster’s New International Dictionary [R575] –
(a)‘tout … To canvass for customers; to solicit for employment, patronage, or the like, as a guide, hotel runner, etc.’;
(b)'tout … One who touts … One who solicits custom, as a runner for a hotel, cab, gambling place’;
(c )‘touter … One who touts, or seeks customers, as for a hotel, shop, etc.’;’
‘Black’s Law Dictionary (eighth edition) [R573] – ‘The solicitation of business by highly recommending a security or product, esp. when the recommendation's basis is largely puffery'.’”
[35] Stroud’s Judicial Dictionary[12] was not cited, but I note in passing that it annotates the noun “tout” in a way that is consistent with the broader sense of the word:
“TOUT. In a libel action (June 13, 1893), Day J., said that “the true meaning of the word ‘tout’ is simply a person who obtains business by solicitation; and not, necessarily, a swindler, though no doubt he might combine the occupations” (37 S.J. 567). In Asch v. Financial News (The Times, June 13, 1893) a jury found the word not libellous.”
[36] Some of the reference books I have mentioned carry more weight in the present context than others but it seems clear enough that in one sense “touting” may extend not only to persistent or otherwise importunate soliciting but also to any direct soliciting for business of the nature in issue here. Ms Smith’s conduct lacked persistence in the relevant sense since there is no evidence that she offered a card more than once to any person or that she spoke to anyone who did not invite a conversation, but she did directly solicit for her employer’s business. The substantial contest is, I think, between the sense for the intransitive verb given in the Macquarie Dictionary and the Oxford English Dictionary (which relevantly require importunate soliciting for business) and that given in the Oxford Australian Dictionary (which relevantly comprehends merely soliciting for business directly).
[37] Which meaning was intended for “touting” in s 29 of the Regulation must be influenced by the context in which that word appears. The Court was referred to the objects of the statutory regulation of the business of adult entertainment in s 3 of the Act but, as is so often the case, those objects are expressed in such general terms as to provide no real assistance in resolving the question. Mr Hayes also argued that a broad prohibition of soliciting for adult entertainment was consistent with the Act’s apparent aim of “internalising” adult entertainment. In that respect, the Act is part of a regulatory scheme which separated the regulation of adult entertainment from the regulation of prostitution.[13] An aspect of this scheme is found in the provisions which are designed to ensure that adult entertainment may be provided only within a screened area wholly inside licensed premises.[14] Further, advertising is extensively regulated. Section 168A prohibits advertising for adult entertainment through radio, television, film or video recording,[15] advertising that is not in the form approved by the chief executive[16] and (relevantly to count 2) advertising that describes the sexually explicit nature of the acts performed in adult entertainment.[17] On the other hand, as SPRRC and Mr Pikos pointed out, s 168A of the Act does not prohibit all advertising for adult entertainment. It therefore cannot be accepted that the Act evinces an intention entirely to “internalise” the promotion of adult entertainment, as opposed to its performance.
[38] SPRRC and Mr Mick Pikos argued that the word “touting” must be construed as requiring some such additional element beyond mere soliciting for business so as to ensure that s 29 of the Regulation was not invalid for inconsistency with the statutory permission of advertising in s 168A of the Act. That argument was not developed by any reference to relevant decisions other than Widgee Shire Council v Bonney[18] which states the relevant principle in general terms. As I understood it, the argument equated the presence of the specific statutory regulation of advertising in s 168A and the absence of any prohibition upon all advertising with a positive statutory sanction of any form of advertising which was not touched by s 168A, but the Act includes statutory provisions which appear to confer upon the executive a relevantly unqualified power to make regulations with respect to “advertising in relation to adult entertainment”.[19] Even on the broadest view of the Regulation it would merely regulate one form of advertising and it would fall far short of prohibiting advertising altogether. I am not persuaded that the Regulation would be invalid if “touting” were given the meaning for which Mr Hayes contends.
[39] As I have already indicated, however, I do accept that the statutory regulation of advertising for “adult entertainment” bears upon the scope of the condition imposed by the Regulation, in that it is consistent with the permission of some forms of advertising or promotion outside the licensed premises. Further, if “touting” comprehended all direct solicitation for business the reference to “spruiking” would seem to add little, if anything. Reading the condition as a whole, the phrase “spruiking or touting for business” seems instead intended to catch two specific (if overlapping) forms of direct solicitation. Had it been intended to ban all public soliciting for what the legislature has sanctioned as a lawful business one would expect the Regulation clearly to say so. There was of course the well known precedent in prostitution legislation, which has for a very long time prohibited publicly soliciting for that business. The Prostitution Act 1999 (Qld), Part 9 of which introduced the “adult entertainment” provisions into the Liquor Act 1992 (Qld), itself provided in s 73(1) that a person must not “publicly solicit for” prostitution, but the condition in this case eschewed that or any similarly general expression. In light of these considerations, and consistently with the unambiguous definition in the Macquarie Dictionary, the prohibition upon “spruiking or touting” outside licensed premises should be construed as outlawing two particular unwanted behaviours in the course of soliciting for the business of “adult entertainment” outside the relevant licensed premises, namely haranguing or soliciting importunately.
[40] I conclude that in the context of the condition implied by s 29 of the Regulation the word “touting” does not comprehend all direct soliciting for business. It requires also something additional, some persistence, repetition, pursuit, pestering, obstruction, or other importunate behaviour. On the findings of fact made by the magistrate Mr Hayes failed to prove that Ms Smith engaged in any conduct of that or any similar description. SPRRC was therefore correctly acquitted of the charge of an offence against s 226 of the Act constituted by a breach of the condition in its permit which prohibited “spruiking or touting” for business outside the licensed premises.
SPRRC: Count 2 (publishing an advertisement “that describes the sexually explicit nature of the acts performed in the entertainment”)
[41] Section 168A(1) of the Act provides:
“(1)A person must not publish an advertisement for adult entertainment that describes the sexually explicit nature of the acts performed in the entertainment.”
[42] The prosecution case was that SPRRC published an advertisement for adult entertainment by employing Ms Smith to hand out the cards. The magistrate found that Ms Smith did publish an advertisement for adult entertainment in that way and also that SPRRC, as Ms Smith’s employer, was liable for her conduct. Those matters are no longer in issue. What is in issue is the magistrate’s further conclusion that the publication of each card was one which “describes the sexually explicit nature of the acts performed in the entertainment” within the meaning of s 168A(1).
[43] The magistrate reasoned that “striptease” was “a form of entertainment specifically designed to provide sexual arousal to persons watching the performance, most notably men. Its very purpose is sexual titillation…”. The absence of any description of how much, if any, clothing the performer would be wearing upon completion of the striptease did not detract from the essential nature of that activity; it was not necessary that the proscribed description be lengthy, since the Macquarie Dictionary defined “described” as meaning “to set forth in written or spoken words [or] given account of…” that thing; and because striptease was an act of an explicitly sexual nature, the word “striptease” described an explicitly sexual act.
[44] In relation to the advertisement of a “Private Lap Dancing Room”, the magistrate observed:
“Lap dancing is ‘a very erotic form of entertainment, typically at a gentlemen’s club, where the naked or nearly nude individual is dancing essentially on the customers lap’. ”
[45] For that definition the magistrate cited a website address for “Wiktionary”. The magistrate observed that his reasoning concerning striptease applied to the term “lap dancing”: it was an act of an explicitly sexual nature, indeed it was more explicitly sexual than striptease, and to say that there was a private room for lap dancing at the nightclub was a brief description of the sexually explicit nature of the acts performed there.
[46] The judge allowed the appeal in respect of this count on the ground that the magistrate’s failure to afford the parties an opportunity of making submissions with respect to the Wiktionary definition of “lap dance” was a denial of natural justice. The judge also cited decisions in which it has been held that, although websites of that character might be acceptable general sources of information for primary or secondary students, they were not reliable sources of information for use as evidence.[20] Mr Hayes does not challenge that aspect of the judge’s reasoning. Rather he argues that having found that the magistrate should not have referred to the online dictionary, the judge should not have remitted the matter back to the Magistrates Court but should have decided whether or not SPRRC was guilty of the offence.
[47] Section 225 of the Justices Act 1886 (Qld) provides:
“(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
(2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
(3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
(4) An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”
[48] Mr Hayes’ contention is, in effect, that the judge erred in the exercise of the discretion given by s 225 either to remit the proceeding back to the Magistrates Court (s 225(2)) or, alternatively, to determine the question himself (s 225(3)). SPRRC and Mr Mick Pikos contest that view. They argue that where the necessity for resorting to the online dictionary was a consequence of the prosecution’s failure to lead evidence about the meaning of the terms “striptease” or “Private Lap Dancing Room” and where the judge found that the magistrate’s reliance upon that online dictionary was not irrelevant to the outcome, no error was demonstrated.
[49] The judge did not give any reasons for rejecting the course which was sought in Mr Hayes’ notice of appeal to the District Court and advocated by his counsel. All of the material considerations favoured that course. The error which the judge found was not one which affected the conviction insofar as it was based upon the advertisement of “Continuous Striptease” on the card. The magistrate did not need to refer and he did not in fact refer to any online or other dictionary for the meaning of those words. Whilst it has been accepted for a long time that dictionaries may be referred to for instruction as to the ordinary sense of undefined words in legislation[21] such reference is by no means always necessary. Furthermore, there appears to have been no question in the District Court, and there was none in this Court, as to the correctness of the magistrate’s understanding of “Continuous Striptease” and “lap dancing”. Importantly, the magistrate’s findings had resolved any factual dispute and no further evidence was required for a final resolution of the proceedings in the District Court.
[50] Where resolution of the proceeding depended only upon the proper construction of a short section of the Act, in my respectful opinion there was no sufficient justification for requiring the parties to incur the further delay and expense necessarily involved in a further hearing. I would uphold Mr Hayes’ argument that the judge’s discretion to remit the matter for re-hearing miscarried. The construction question having been fully argued, it is appropriate that this Court now decide whether SPRRC’s publication of the card advertising “Continuous Striptease” and “Private Lap Dancing” contravened s 168A(1) of the Act.
[51] The definition of “adult entertainment” in s 4 of the Act refers to s 103E, which provides:
“(1) There is to be an adult entertainment code (the code).
(2) The code prescribes the live entertainment that may be performed for an audience, by a person performing an act of an explicit sexual nature (adult entertainment), on licensed premises or premises to which a general purpose permit or restricted club permit relates under an adult entertainment permit.
(3) Adult entertainment does not include the performance of the following acts—
(a) sexual intercourse;
(b) masturbation;
(c) oral sex.”
[52] Accordingly, for the purposes of the Act “adult entertainment” is the performance by any person in front of an audience of any act of an explicit sexual nature. The exclusions in s 103E(3) do not narrow that definition. Rather, the effect of that sub-section is that the specified acts may not lawfully be performed under the authority of an adult entertainment permit.
[53] Reading those provisions together produces a curious result. The Act does not prohibit advertisements for the performance of acts of an explicit sexual nature provided that the advertisement does not describe the sexually explicit nature of those acts. These provisions are expressed in such a vague and circular way as to defy confident linguistic analysis. What does seem clear though is that s 168A(1) does not prohibit a description of the general nature of an “entertainment” which will include sexually explicit acts. Rather it prohibits a description of the sexually explicit nature of the acts forming part of that “entertainment”. An obvious illustration of the distinction is an advertisement which describes the performance only as “adult entertainment”. That defined term necessarily implies that the performance will include acts of a sexually explicit nature, but it does not contain any description of the nature of those acts. Accordingly the sub-section is not so expressed as to prohibit such an advertisement. That view seems generally consistent with those provisions of the Act, discussed earlier, which permit the conduct of “adult entertainment” businesses but aim to confine any such performance in a private area inside licensed premises. Section 168A mirrors those provisions by allowing advertisements which describe the general nature of such performances whilst seeking to prevent members of the public from being exposed to pictures or descriptions of the sexually explicit acts which constitute the “adult entertainment”.
[54] Applying that construction of s 168A(1) to the facts, whilst the terms “striptease” and “lap dancing” describe the general nature of two aspects of the “adult entertainment” performed at the nightclub, the better view is that they do not themselves describe the sexually explicit nature of the acts involved in the “adult entertainment”. It should be acknowledged that this advertisement is close to the borderline, since “striptease” and “lap dancing” may themselves be thought to describe conduct of a sexually explicit nature notwithstanding the absence of any more particular description of the series of continuous acts which together constitute those activities Nevertheless, I have concluded that s 168A(1) is not expressed in sufficiently broad or specific terms so as to render it a criminal offence to publish such general descriptions of behaviour which the legislature has provided may lawfully be conducted by the holder of an adult entertainment permit.
[55] It follows that SPRRC should have been acquitted on count 2.
Mr Pikos: Counts 1 and 2
[56] As I have concluded that SPRRC was correctly acquitted of count 1 and should have been acquitted of count 2, I would hold that Mr Pikos was correctly acquitted of both counts. In the circumstances (which include the absence of any consideration of this question in the District Court) I think it inappropriate for this Court now to embark upon the hypothetical task of deciding whether or not s 109(6)(c) might render Mr Pikos liable if SPRRC were convicted of either count.
Disposition and Orders
[57] I consider that the following orders are appropriate to give effect to my conclusion that the charges against both respondents should have been dismissed:
1. Grant the application for leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld) and grant leave to appeal under r 661(4)(b) of UCPR.
2. Allow the appeal.
3. Set aside order number 3 (“Matter remitted to Magistrates Court before a Magistrate other than original presiding Magistrate”) made in the District Court in appeal number D564/08 and order instead that the first respondent Surfers Paradise Rock and Roll Café Pty Ltd be acquitted of count 2 and that the complaint against it be dismissed.
4. Order that the applicant/appellant pay the respondents’ costs of the application and appeal in this Court.
[58] CHESTERMAN JA: I agree that the orders proposed by Fraser JA should be made, and with his Honour’s reasons for making them. I add some brief observations of my own.
[59] Ms Smith’s attempts to obtain customers for the Crazy Horse Nightclub did not make her a tout according to my understanding of the term. Indeed her behaviour was so decorous as to be likely to attract the censure of her employer and, perhaps, put her employment in some jeopardy, should he learn of it, perhaps by reading the reasons for judgment in this case.
[60] She seems to have done no more than invite passers by to accept the offer of half price admission to the nightclub. She did so quietly and, it seems, without obstinacy or persistence. There is no evidence that she attempted to detain those who immediately declined her offer, or attempted to persuade them to change their minds.
[61] I have always understood the word “tout” to bear the connotation of conduct that is obtrusive, persistent and importunate: conduct designed to overcome hesitation or reluctance.
[62] To call someone a tout is to disparage and disdain the person in a way that designating them “salesmen” or “saleswomen” does not.
[63] It is apparent that the word has a different meaning when used in the context of horse racing. The difference emerges from the definitions which Fraser JA has found and set out. A tout in racing circles is apparently not an importunate promoter or salesman, but a spy or tipster. Certainly Frank Hardy in Power Without Glory distinguished between “touts” and “urgers”, though in the book both combined on occasions, no doubt at the behest of bookmakers, to distort the betting market by the provision of false information and encouragement to act upon it, so that losing horses were backed by the ignorant and the gullible, to the benefit of the bookmakers.
[64] In other contexts a tout, in my understanding, has the attributes of the urger and combines both roles: the provision of information and/or the making of an invitation, and urging its acceptance.
[65] To the definitions provided by Fraser JA one may add that from Chambers 21st Century Dictionary, which is often helpful. It defines tout:
“tout verb (touted, touting) 1 intrans (usually tout for something) to persistently try to persuade people to buy something, give their support, etc tout for trade. 2 to advertise or praise strongly or aggressively. 3 intrans to spy on racehorses in training to gain information about their condition and likely future performance. noun 1 (in full ticket tout) someone who buys up large numbers of tickets for a popular sporting event, concert, etc and sells them at inflated prices to members of the public. 2 someone who spies on racehorses in training and passes information about their condition, etc to people wishing to bet on them. 3 someone who touts for trade, especially persistently or aggressively”.
[66] The Oxford Thesaurus suggests as synonyms for tout:
"1.Hawk, peddle, sell, promote, talk up, colloq push, plug …
2.Tipster …”
thus retaining its two meanings depending on whether one is at a racecourse or elsewhere.
[67] “Hawk”, “push” and “plug” are all words suggestive of importunity, persistence and a degree of insistent aggressiveness. The Chambers definition stresses persistence and aggression as the tout’s distinguishing features.
[68] There was no element of that in Ms Smith’s conduct. She was not touting.
Footnotes
[1]Each complaint alleged a further count in the alternative to count 2 but those alternative counts were abandoned at the commencement of the trial in the Magistrates Court.
[2] No point was taken that the charge was duplicitous in alleging “spruiking or touting”.
[3] The Macquarie Dictionary, 5th Edition, 2009.
[4] The magistrate cited Behrendt v Burridge [1976] 3 All ER 285 at 288 as per the Lord Chief Justice; [1977] 1 WLR 29 at 33.
[5] Hayes v Surfers Paradise Rock and Roll Café Pty Ltd & Anor [2009] QDC 214 at [17].
[6] See Stevenson v Yasso [2006] 2 Qd R 150 at [36], Parsons v Raby [2007] QCA 98 at [24], and Rowe v Kemper [2009] 1 Qd R 247 at [5].
[7] Hayes v Surfers Paradise Rock and Roll Café Pty Ltd & Anor [2009] QDC 214 at [17].
[8] The Macquarie Dictionary, 5th Edition, 2009.
[9] In Canada the word apparently connotes other forms of misconduct. Words & Phrases: Judicially Defined in Canadian Courts and Tribunals (Carswell) cites a decision by Commissioners (McGroarty, Re (1990), 13 O.S.C.B. 3887 at 3931, Salter (Vice-Chair), Waitzer and Wigle) for this proposition: “Tout: [means] to solicit business, to pester possible customers to buy, in a way that masks relevant information – “something not up front”, in counsel’s terms. The distinction between touting and “a good hard sell” may in some cases be difficult to draw. The difference lies in the tout’s exaggerations - sometimes subtle, sometimes gross - and concealments of facts.” It was not submitted that this reflected a common sense of the word in Queensland.
[10] The Oxford English Dictionary, 3rd Edition, 1993.
[11] The Australian Oxford Dictionary, 2nd Edition, 2004.
[12] Stroud’s Judicial Dictionary, 5th Edition, 1986.
[13] The regulatory scheme and its genesis are summarised in Chief Executive, Department Tourism, Fair Trading and Wine Industry Development v 4 Play (Oz) Pty Ltd [2008] 2 Qd R 436 at[10]–[15].
[14] See in particular ss 103E(2), 103G(1), and 103H.
[15] Section 168A(3).
[16] Section 168A(2). A charge that SPRRC contravened this provision was abandoned.
[17] Section 168A(1).
[18] Widgee Shire Council v Bonney (1907) 4 CLR 977 at 983.
[19] Section 235(2)(k). That extends to a power to make regulations which create an offence: s 235(3). See also s 107C.
[20] MZXMM v Minister for Immigration [2007] FMCA 975 at [120]; Environment Protection Authority v Bowport All Roads Transport Pty Limited [2009] NSWLEC 103 at [43].
[21] See R v Peters (1886) 16 QBD 636 at 641 per Lord Coleridge, cited in Statutory Interpretation in Australia (6th ed., 2006), Pearce and Geddes at [3.30].