Hill-Mac Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation
[2014] QCA 19
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- Hill-Mac Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation[2014] QCA 19
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Hill-Mac Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation[2014] QCA 19
Hill-Mac Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation[2014] QCA 19
SUPREME COURT OF QUEENSLAND
CITATION: | Hill-Mac Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2014] QCA 19 |
PARTIES: | HILL-MAC PTY LTD |
FILE NO/S: | Appeal No 2473 of 2013 QCAT No 358 of 2011 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Queensland Civil and Administrative Tribunal at Brisbane |
DELIVERED ON: | 18 February 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 August 2013 |
JUDGES: | Fraser and Morrison JJA and Philip McMurdo J Judgment of the Court |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – AS OF RIGHT – where the appellant is the owner and licensee of a hotel – where the respondent took disciplinary action against the appellant under the Liquor Act 1992 – where the appellant applied in the Queensland Civil and Administrative Tribunal for review of the respondent’s decision – where the Tribunal set down five preliminary questions of law arising in the application for review – where the appellant filed a notice of appeal in the Court of Appeal against the Tribunal Member’s answers to the preliminary questions – where s 35 of the Liquor Act 1992 appears to grant a right of appeal to the Court of Appeal on a question of law against a decision of the Tribunal – whether s 35 of the Liquor Act 1992 contemplated an interlocutory decision or a final decision – whether the Tribunal Member’s determination of preliminary questions of law constituted a “decision” affording the appellant a right to appeal GAMING AND LIQUOR – LIQUOR – OFFENCES RELATING TO REGULATION AND CONDUCT OF LICENSED PREMISES – OTHER OFFENCES – where the respondent relied on the grounds for disciplinary action in s 136(1)(a)(i) and s 136(1)(h)(ii) of the Liquor Act 1992 insofar as it invokes non‑compliance with s 148A(4) of the Liquor Act 1992 – where the respondent gave the appellant a notice of proposed disciplinary action pursuant to s 137 of the Liquor Act 1992 – where the notice described numerous incidents alleged to have occurred at the licensed premises as the basis for the respondent having taken action – where the appellant sought review of the decision pursuant to s 21 of the Liquor Act 1992 in the Queensland Civil and Administrative Tribunal – where the appellant argued that it had taken all reasonable steps to comply with the Liquor Act 1992 and that it was insufficient for the respondent to rely on a series of alleged incidents without identifying an act or omission made by the appellant – whether the identification of an act or omission of the licensee is a requirement for taking disciplinary action upon the ground in s 136(1)(h)(ii) of the Liquor Act 1992 – whether it is necessary to identify an act or omission of the licensee in order to establish a contravention of s 148A(4) of the Liquor Act 1992 Liquor Act 1992 (Qld), s 21, s 35, s 111, s 112, s 136(1)(a)(i), s 136(1)(h)(ii), s 137, s 137A, s 148A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 142, s 153 Hardy v St Vincent’s Hospital Toowoomba Ltd [2000] 2 Qd R 19; [1998] QCA 86, cited Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1, cited NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2013] QCA 179, cited Revestar Pty Ltd v Chief Executive, Liquor Licensing Division [2008] QCCTL 12, considered WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 579; [2004] FCA 1245, considered |
COUNSEL: | G Gibson QC, with S Fynes-Clinton, for the appellant P J Flanagan QC, with A D Scott, for the respondent |
SOLICITORS: | Mullins Lawyers for the appellant DJAG Office General Counsel for the respondent |
- THE COURT: The appellant is the owner and licensee under the Liquor Act 1992 of the Alexandra Hills Hotel-Motel. The respondent took disciplinary action against the appellant, in the form of fines and the addition to the appellant’s liquor licence of various conditions.
- Section 136(1) sets out the “ground for taking disciplinary action relating to a licence…”. The following subparagraphs include:
“(a)the licensee has failed to –
(i)comply with this Act; or
…
(h)the use of the licensed premises, or the behaviour of persons entering or leaving the premises –
(i)is causing undue annoyance or disturbance to persons -
(A)living, working or doing business in the neighbourhood of the premises; or
(B)conducting or attending religious services in the neighbourhood of the premises; or
(ii)is causing disorderly conduct in, or in the neighbourhood of, the premises…”.
- In relation to the ground for disciplinary action in s 136(1)(a)(i), s 148A provides:
“(1)This section imposes obligations on licensees and permittees in the conduct of business on licensed premises or premises to which a permit relates for—
(a)maintaining a safe environment for patrons and staff of the premises; and
(b)ensuring liquor is served, supplied and promoted in a way that is compatible with minimising harm from the use of liquor and preserving the peace and good order of the neighbourhood of the premises.
(2)The licensee or permittee must not engage in a practice or promotion that may encourage rapid or excessive consumption of liquor.
Maximum penalty—100 penalty units.
(3)The licensee or permittee must engage in practices and promotions that encourage the responsible consumption of liquor.
Maximum penalty—100 penalty units.
(4)The licensee or permittee must provide and maintain a safe environment in and around the premises.
Maximum penalty—100 penalty units.
(5)A regulation may prescribe examples of what are acceptable or unacceptable practices or promotions for subsections (2) to (4).
(6)A practice or promotion prescribed under a regulation for a subsection does not limit the subsection."
- The respondent relied upon the grounds for disciplinary action in s 136(1)(h)(ii) and s 136(1)(a)(i) insofar as it invokes non-compliance with s 148A(4). An issue in this appeal is whether it is an element of those grounds for disciplinary action that the “disorderly conduct” referred to in s 136(1)(h)(ii) and the absence of the “safe environment” referred to in s 148A(4) resulted from an act or omission of the licensee.
Facts, statutory provisions, and procedural background
- The Liquor Act 1992 provides in s 137(1) that “[i]f the chief executive … considers, on reasonable grounds, there is a ground to take disciplinary action relating to a licence (the proposed action), the chief executive must give the licensee a written notice” stating specified matters which include “(a) the proposed action”, “(b) the grounds for the proposed action”, “(c) an outline of the facts and circumstances forming the basis for the grounds”, and “(i) an invitation to the licensee … to show, by a stated date that is at least 28 days after the notice is given … why the proposed action should not be taken …”.
- In purported compliance with s 137, on 3 December 2010 the respondent gave to the appellant a notice which proposed the disciplinary action that the licensee pay to the Department $10,000 for each of two grounds and the respondent vary the appellant’s licence by adding conditions which were evidently designed to prevent repetition of the grounds. (Those actions fall within the defined meaning of “disciplinary action”.) The notice specified the following grounds for taking that proposed disciplinary action:
“Ground One
Pursuant to section 136(1)(a)(i) of the Act, the Licensee has failed to comply with the Act.
Failure to comply with section 148A(4) of the Act – Licensee must provide and maintain a safe environment in and around the Licensed Premises.”
The following pages of the notice describe numerous incidents which were alleged to have occurred between 5 July 2008 and 30 April 2010, including assaults by patrons upon other patrons and staff within and in the vicinity of the licensed premises, and intoxicated patrons being removed from the licensed premises and becoming aggressive towards security providers and others.
This part of the notice concludes with a statement that the “fighting, violent incidents and threatening behaviour by patrons of the Licensed Premises indicate a failure by the Licensee to provide and maintain a safe environment in and around the Licensed Premises”.
“Ground Two
Pursuant to section 136(1)(h)(ii) of the Act, the use of the Licensed Premises, or the behaviour of persons entering or leaving the Licensed Premises, is causing disorderly conduct in, or in the neighbourhood of, the Licensed Premises.”
The following pages of the notice again describe the numerous incidents alleged for ground 1.
- Section 137A(1) confers power upon the chief executive, if the chief executive still considers after considering any representations that there is a ground to take disciplinary action relating to the licence, to take the disciplinary action. (Other provisions in s 137A which qualify that power and provide for further notices if the chief executive decides to take disciplinary action other than that which was proposed in the notice under s 137 are not relevant in this matter.) After the appellant had made representations in response to the invitation in the earlier notice, on 31 October 2011 the respondent notified the appellant of a decision under s 137A to take the disciplinary action against the appellant which had been proposed in the earlier notice. Under the heading “Material Findings of Fact” the notice recited that grounds existed for disciplinary action, that the appellant “has failed to comply with the Act by failing to provide a safe environment in and around the Licensed Premises”, and that “[t]he use of the Licensed Premises and also the behaviour of persons entering and leaving the licensed premises is causing disorderly conduct in and in the neighbourhood of the Licensed Premises.” After stating that the “… evidence of the facts and circumstances forming the basis for the Grounds for the Disciplinary Action” were contained in various identified documents, the notice repeated, as “[t]he reasons for the decision to take the Proposed Disciplinary Action”, the two grounds of the earlier notice, with the addition of alleged incidents up to 27 February 2011 under ground 1 and the addition of alleged incidents up to 21 May 2011 under ground 2.
- Section 21 of the Liquor Act 1992 confers jurisdiction upon the Queensland Civil and Administrative Tribunal to review such a decision. Under s 21(3) the Tribunal has the powers and discretions of the respondent in respect of the matter under review. Section 33 requires the Tribunal to hear and decide the review of the decision “by way of a reconsideration of the evidence before the chief executive or the commission when the decision was made”,[1] but the Tribunal is empowered by s 34 to grant a party leave to present evidence that was not before the Commissioner when the decision was made if the Tribunal is satisfied that the party did not know and could not have reasonably been expected to have known of the existence of the new evidence before the decision and it would be unfair not to allow the party to present new evidence. Under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), the function of the Tribunal is to hear and decide the review by way of a fresh hearing on the merits and to produce the “correct and preferable decision”. Section 24 of the QCAT Act empowers the Tribunal to confirm, amend or set aside the respondent’s decision and to substitute its own decision or to return the matter for reconsideration with directions the Tribunal considers appropriate.
- The appellant applied in the Tribunal on 28 November 2011 for a review of the respondent’s decision. The application set out many factual and legal propositions in support of the contention that the decision was wrong or not properly made. Amongst other matters, the application asserted that the appellant had taken all reasonable steps to comply with s 148A(4) and to prevent the occurrence of the circumstances referred to in s 136(1)(h)(ii), and that it was insufficient for the respondent to rely upon the mere occurrence of a series of alleged incidents without identifying an act or omission by the appellant which caused or contributed to the incident and (ground 1) evidenced failure on the part of the appellant to provide and maintain a safe environment or (ground 2) occurred in the course of the appellant’s use of the licensed premises or affected or related to the behaviour of persons entering or leaving the premises. In relation to ground 2, the appellant also contended that the respondent was required but failed to identify instances of disorderly conduct in or in the neighbourhood of the premises which were occurring on a continuous or repeated basis at or about the time the respondent made the decision.
- The respondent filed a statement of facts and contentions. In relation to ground 1, the respondent admitted that the respondent did not identify any act or omission by the appellant which caused or contributed to any alleged incident or how or why the fact of the incident otherwise demonstrated failure on the part of the appellant to provide and maintain a safe environment. The respondent contended that this was not required to support the finding that the appellant had failed to comply with s 148A(4). In relation to ground 2, the respondent admitted that the respondent did not identify any act or omission by the appellant in the course of its “use of the licensed premises” or how or why the incidents evidenced disorderly conduct arising out of something done by the appellant affecting or relating to the behaviour of persons entering or leaving the licensed premises which caused any incident. The respondent contended that this was not required to support the finding that disciplinary action against the appellant was justified under s 136(1)(h)(ii). The respondent denied the alleged requirement to identify instances of disorderly conduct in or in the neighbourhood of the premises which were occurring on a continuous or repeated basis at or about the time the decision was made.
- On 22 August 2012 the Tribunal directed that five preliminary questions of law arising in the application for review be listed for determination. The Tribunal Member who heard submissions upon the questions directed amendments to two of them and he corrected some typographical errors in one of the questions. The questions were as follows:
“1Pursuant to Part 5, Division 3, Subdivision 3 of the Liquor Act 1992, is it a requirement for disciplinary action based on grounds in section 136(1)(a)(i), namely a contravention of section 148A(4) of the Liquor Act 1992, that one or both of the following be identified for each incident:
(a)actions taken by the licensee; or
(b)actions omitted to be taken by the licensee,
the doing of which act or the making of which omission by the licensee has resulted in a contravention of s 148A(4)?
2Further to the extent that the Tribunal finds it necessary to consider the issue in determining question (1) - on the proper construction of ss 136(1)(a)(i), and 148A(4) of the Liquor Act 1992, is the Tribunal bound to find, upon reconsideration of the evidence before the chief executive when the decision was made, that there was no circumstance justifying the taking of disciplinary action against the Applicant based on an asserted contravention of s 148A(4), because there is no part of that evidence which identifies one or more:
(a)actions taken by the licensee; or
(b)actions omitted to be taken by the licensee,
the doing of which act or the making of which omission by the licensee has resulted in a contravention of s 148A(4)?
3Pursuant to Part 5, Division 3, Subdivision 3 of the Liquor Act 1992, is it a requirement for disciplinary action based on grounds in section 136(1)(h)(ii) of the Liquor Act 1992 that one or both of the following be identified for each incident:
(a)actions taken by the licensee; or
(b)actions omitted to be taken by the licensee,
the doing of which act or the making of which omission by the licensee has caused the circumstances described in s 136(1)(h)(ii)?
4Further to the extent that the Tribunal finds it necessary to consider the issue in determining question (3) - on the proper construction of s 136(1)(h)(ii) of the Liquor Act 1992, is the Tribunal bound to find, upon reconsideration of the evidence before the chief executive when the decision was made, that there was no circumstance justifying the taking of disciplinary action against the Applicant based on the circumstance stated in s 136(1)(h)(ii), because there is [no[2]] part of that evidence which identifies one or more:
(a)actions taken by the licensee; or
(b)actions omitted to be taken by the licensee,
the doing of which act or the making of which omission by the licensee has caused the circumstance described in s 136(1)(h)(ii)?
5Is it a requirement, for a disciplinary action based on grounds in section 136(1)(h)(ii) of the Liquor Act 1992 for instances of ‘disorderly conduct in, or in the neighbourhood of, the premises’, to identify instances which occurred on a continuous or repeated basis at or about the time the decision was made, and actions or omissions of the licensee in the course of its ‘use of the licensed premises’ or affecting or relating to ‘the behaviour of persons entering or leaving the premises’, which acts or omissions were the cause of that conduct?”
- After a hearing, the Tribunal Member published a decision in which he answered “no” to the first four preliminary questions and answered question 5 as follows:
“(a)It is a requirement, for a disciplinary action based on grounds in section 136(1)(h)(ii) of the Liquor Act 1992 for instances of "disorderly conduct in, or in the neighbourhood of, the premises", to identify instances which occurred on a continual or repeated basis up to and including a period at or about the time the decision was made; however, the questions whether the disorderly conduct is occurring on a sufficiently continual or repeated basis, and whether it is occurring sufficiently contemporaneously with the decision, are questions of fact to be determined in each case.
(b)It is not a requirement for such a disciplinary action to identify actions or omissions of the licensee in the course of its use of the licensed premises, or affecting or relating to the behaviour of persons entering or leaving the premises, which acts or omissions were the cause of that conduct.”
- The appellant filed a notice of appeal in this Court against that decision. The grounds of the appeal are that the Tribunal Member erred in law in respects which substantially reflect the legal propositions advanced by the appellant in its application to the Tribunal (see [9] of these reasons). The orders sought in the notice of appeal are, in addition to an order allowing the appeal with costs, that the order of the Tribunal be set aside and that the Court declare or determine that the correct answers to the preliminary questions are “Yes” to questions 1, 3, and 5, and “if necessary to answer, yes” to questions 2 and 4. At the hearing of the appeal the appellant did not pursue the challenge to the answer to question 5,[3] but as will appear, paragraph (b) of that answer is inconsistent with our construction of s 136(1)(h)(ii) of the Liquor Act 1992.
Does the appellant have a right of appeal?
- The respondent’s outline of submissions quoted a statement by French J (as his Honour then was) in WAKN v Minister for Immigration and Multicultural and Indigenous Affairs[4] that “[o]rdinarily it would not seem that any…appeal would lie against a ruling on a preliminary question unless it finally disposed of the application”. The appellant construed that as a submission that the Court lacked jurisdiction to entertain the appeal and argued to the contrary.
- Section 35 of the Liquor Act 1992 provides:
“(1)This section applies to a decision of the tribunal (the tribunal decision) in a proceeding for a review of a decision of the chief executive.
(2)The QCAT Act, chapter 2, part 8, division 1 does not apply to the tribunal decision.
(3)A party to the proceeding may appeal to the Court of Appeal against the tribunal decision but only if the appeal is on a question of law.
(4)To remove any doubt, it is declared that the QCAT Act, section 149 does not apply to the tribunal decision.
Note—
See the QCAT Act, sections 151 to 153, 155 and 156 for other requirements and effects of an appeal to the Court of Appeal.”
- The word “decision” is not defined in the Liquor Act 1992. The ordinary meaning of “decision” comprehends the determination of a question.[5] There appears to be no reason to exclude that meaning from the scope of s 35. The issue is whether “decision” comprehends a preliminary determination of a question, that is, a determination which does not conclude the proceeding in the Tribunal in which the question is answered.
- The expression “decision, of the tribunal” is defined in Sch 3 of the QCAT Act as meaning (except in relation to a chapter which is not presently relevant) “(i) an order made or direction given by the tribunal; or (ii) the tribunal’s final decision in a proceeding…”. The provisions of the QCAT Act referred to in s 35(2) of the Liquor Act 1992 provide for appeals by a party to a proceeding in the Tribunal to the Appeal Tribunal. Those provisions use the word “decision” in a way which comprehends both a final decision and a decision that is not a final decision. In particular, whilst s 142(1) confers upon a party to a proceeding a right to appeal to the Appeal Tribunal against the decision of the Tribunal in certain circumstances, s 142(3)(a) provides that an appeal against certain decisions, including “(ii) a decision that is not the tribunal’s final decision in a proceeding”, may be made only if the party has obtained the Appeal Tribunal’s leave to appeal. The exclusion of those provisions by s 35(2) of the Liquor Act 1992 strongly suggests that both final and other decisions are comprehended by the word “decision” in ss 35(1) and (3). It should be accepted that s 35 conferred upon the appellant the right to appeal on questions of law from the Tribunal Member’s determinations of the preliminary questions.
Questions 1-4: the Tribunal Member’s reasons
- In relation to s 136(1)(h)(ii), the Member reasoned that there was no reference to conduct of the licensee, except by the indirect reference that the use of the premises was by the licensee, and that one element of the ground relied on the conduct of persons other than the licensee, namely, the behaviour of persons entering or leaving the premises. The paragraph posed the question whether the use of the premises or the behaviour of those persons was causing disorderly conduct. Although it might be harsh in some cases for a licensee to be liable to disciplinary action where the licensee could not have anticipated or prevented the behaviour or conduct of patrons which caused disorderly conduct, Parliament had made the licensee responsible for patrons’ behaviour. The harshness of the provision in certain circumstances was relevant to the exercise of the discretion whether to take any, and if so what, disciplinary action.
- In relation to s 148A(4), the Member considered that it imposed upon a licensee an obligation in the conduct of the licensee’s business on the premises to provide and maintain a safe environment in and around the licensed premises; the obligation was not limited to using the licensee’s best endeavours or taking reasonable steps to provide and maintain such an environment. The obligation was not to ensure the safety of patrons and neighbours but to provide and maintain a particular “environment”. The Member observed that an “unsafe incident” may not reveal that the environment in which the incident occurred was not safe: “[t]o determine that issue would require consideration of all the circumstances in which the incident occurred, including what was happening around it, and what the licensee was or was not doing to provide and maintain a safe environment.” After observing that if the environment was unsafe the licensee had failed in its duty, the Member added that even that test was qualified by the requirement that the unsafe environment “is ‘in the conduct of business on licensed premises.’” It was possible to envisage an unsafe environment around the premises that arose from circumstances divorced from the licensee’s conduct of the business on the premises.
- The Member concluded that, upon his construction of ss 148A(4) and 136(1)(h)(ii), it was open to the respondent to rely on one or more “unsafe or disorderly incidents in or around the premises” as evidence that the licensee had not met its obligations under those provisions even though it would have been impossible for the licensee to prevent the development of an unsafe environment or disorderly conduct. The Member considered that this construction of the provisions reflected their text and was consistent with the purpose of the Liquor Act 1992 in s 3(a). (That provision identifies one of the main purposes of the Liquor Act 1992 as being “to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way compatible with … minimising harm, and the potential for harm, from alcohol abuse and misuse and associated violence; … and minimising adverse effects on the health or safety of members of the public; …and minimising adverse effects on the amenity of the community...”.)
- The Member ended this section of his reasons as follows:
“I do not accept that this means that Parliament has decided to impose liability to discipline without fault, in a manner that is anathema to the rule of law. The applicant noted that, in an earlier case involving discipline for breach of s 148A(4),[6] the Commercial and Consumer Tribunal drew the inference that a series of serious violent incidents at the premises was evidence of inadequate management practices on the part of the licensee. Indeed, the tribunal said, ‘the totality of the evidence amply demonstrates that a large number of [patrons] have been served alcohol when responsible service of alcohol demanded that they not be served. The anti-social behaviour which is evidenced in the incident reports and court briefs is of a kind which occurs when a person is unduly intoxicated.’
The words of the provisions, which are direct and unambiguous, indicate that Parliament took a similar view: if there is disorderly conduct by patrons of licensed premises, or if the environment in or around the premises is unsafe, it is likely to be a result of inadequate management practices, particularly the service of alcohol to already intoxicated persons. It is unsurprising that such a view might be formed or that Parliament considered an appropriate remedy to be to impose a form of liability to disciplinary action that imputes that the conditions or behaviour were caused by the licensee’s conduct of its business. In fact, it specifically provided that such action could include (as it did in this case) the imposition of penalties and changes to the conditions of the licence, no doubt intended to be designed to improve the licensee’s ability to prevent further breaches of the relevant provisions. In that sense, the disciplinary action provided by the Act is punitive, deterrent, corrective and educative, thus meeting the ends which, as the applicant submitted, disciplinary action should be designed to meet. I might add that it could also be seen to be protective of the public and the public interest.”
Questions 1-2: consideration
- In relation to each of questions 1 - 4, the appellant submitted that, on the proper construction of the relevant provisions of s 136, the taking of disciplinary action against a licensee required the respondent to identify some act or omission by the licensee which caused the circumstance or outcome referred to in s 136(1)(h)(ii) or s 148A(4). The respondent submitted that the Member’s construction was correct for the reasons given by the Member.
- In relation to questions 1-2 in particular, the respondent submitted that s 148A(4) made a licensee strictly liable for an offence where the environment in and around the licensed premises was not safe; that a breach of s 148A(4) could be established simply from proof of the facts of a sufficient number of the specified incidents which would found an inference that there was not a safe environment in and around the premises. It was submitted that once an unsafe environment was proved, it would be immaterial whether that circumstance had been avoidable by some action by the licensee. On this argument, the statute obliges the licensee to produce and maintain a result which, in the particular facts and circumstances, may be unachievable by the licensee, but which, in such a case, can result in the commission of an offence by the licensee and an exposure to disciplinary action.
- The terms of s 148A(4), consistently with s 148A(1), impose obligations upon the licensee. Necessarily, a non-compliance with s 148A(4) involves a failure to perform an obligation. The licensee must provide a safe environment in and around the premises and it must maintain that environment. The content of those obligations is qualified by their description in s 148A(1) that they are “obligations on licensees … in the conduct of business on licensed premises …”. In recognition of that provision, the respondent accepted in argument that disciplinary action could be taken only where the alleged contravention was related to the licensee’s conduct of the business on the licensed premises, but that necessary qualification is itself an indication that s 148A(4) may be engaged only by an act or omission of the licensee which resulted in the relevant environment being unsafe. The word “for” in the introductory text of s 148A(1) suggests that s 148A(4) imposes upon a licensee obligations which are aimed at achieving a safe environment for patrons and staff of the premises both in and around the premises. Another indication pointing in the same direction may be seen in s 148A(5). The extension of that provision beyond ss 148A(2) and (3) to s 148A(4) suggests that the latter subsection is engaged only by some act or omission which has a causal relationship with absence of safety in the described environment. That impression is not weakened by s 148A(6); it is consistent with a view that s 148A(4) may be engaged, for example, either by a licensee engaging in proscribed practices or promotions which result in an unsafe environment or by other acts or omissions of the licensee which have the same result.
- Section 148A must be interpreted as imposing obligations which are capable of being performed. The obligations under s 148A(4) require the licensee to provide and maintain a safe environment in and around the premises insofar as the licensee is able to do so in the conduct of its business on the licensed premises. It follows that in the commission of any offence against s 148A(4), there must be an act or omission on the part of the licensee. In turn, the respondent must identify and prove that act or omission.
- There is a distinction here between the content of the licensee’s obligation, namely to provide and maintain a safe environment in and around the premises, and the fact of a contravention in a particular case. It is the same distinction which was described by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Kirk v Industrial Court of New South Wales.[7] In that case, the content of the relevant duties were defined, within ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW), as requiring every employer to “ensure the health, safety and welfare at work of all his employees” and to “ensure that persons not in his employment are not exposed to risks to their health or safety arising from the conduct of his undertaking while they are at his place of work” respectively. One error in the reasoning of the Industrial Court, which was identified by the High Court, was the acceptance of a proposition that the prosecutor was not required to demonstrate that particular measures should have been taken to prevent an identified risk. Their Honours said:
“34.Walton J referred to earlier case law that the duty imposed upon an employer ‘is to be construed as meaning to guarantee, secure or make certain’ and that the duty is directed at obviating ‘risks’ to safety at the workplace. References to guarantees, and emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16. The approach taken by the Industrial Court fails to distinguish between the content of the employer’s duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is - what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge.”[8]
- In Kirk, one reason why the acts or omissions, the subjects of the charges, had to be identified was to enable the defendants to raise a defence under a provision of that statute[9] which does not have an analogue in the Liquor Act 1992. But that was not the only reason, according to the joint judgment, why the prosecutor was obliged to identify the acts or omissions of the employer.[10]
- The respondent here was obliged by s 137 to give the licensee a written notice which stated, amongst other things, “the grounds for the proposed action [and] an outline of the facts and circumstances forming the basis for the grounds”.[11] That required the respondent at least to identify the facts and circumstances of the alleged offence. The respondent’s notice did no more than identify the particular obligation, being that under s 148A(4), and provide particulars of the various incidents. Consistently with the respondent’s argument, the notice did not identify any act of the licensee or any measure which should have been taken by it.
- Counsel for the respondent argued that there was a relevant distinction between criminal proceedings, as in Kirk, and disciplinary proceedings as in the present proceeding, so that the reasoning in Kirk is not relevant. That submission is unpersuasive for two reasons. The first is that disciplinary action based upon a non‑compliance with s 148A(4) still requires the proof of an offence against that provision, and the offence has the same elements whether it is in question in disciplinary or criminal proceedings. The second is that it could hardly be thought that the statutory requirement upon the respondent to provide notice of the facts and circumstances forming the basis for the alleged ground did not require at least an outline of the facts which were the elements of the offence.
- For these reasons, s 148A(4) is contravened only where a licensee does or omits to do an act (or acts) in the conduct of business on the licensed premises which results in a safe environment in or around the premises … not being provided or maintained for patrons and staff (and, arguably, also for all other persons, having regard to the purpose stated in s 148A(1)(b)).
- In support of that construction, the appellant relied upon Kirk v Industrial Court (NSW),[12] NK Collins Industries Pty Ltd v President of the Industrial Court,[13] and Hardy v St Vincent’s Hospital Toowoomba Ltd.[14] Kirk is relevant in the way we have explained, but otherwise the legislative provisions in issue in those cases bear insufficient resemblance to s 148A(4) to render them of direct assistance in determining its proper construction. We accept the appellant’s submission that the construction we prefer is consistent with Revestar Pty Ltd v Chief Executive, Liquor Licensing Division, to which the Member referred in the passage quoted in [21] of these reasons. In that case the Commercial & Consumer Tribunal did not find a contravention of s 148A(4) merely in the evidence that many violent incidents occurred at the licensed premises; rather, the finding was based upon inferences that many serious assaults had been committed by persons who had been served alcohol whilst heavily intoxicated, that was inconsistent with the responsible service of alcohol, and management practices were inadequate to deal with the number of patrons and their behaviour.[15]
- In the decision by the respondent under s 137A, the respondent rejected a submission by the appellant that “the mere existence of incidents is insufficient to establish a breach of the Act” and that “the evidence must establish that an [a]ct or omission by the Licensee has … contributed to an incident or issue that might otherwise impact upon there being a safe environment …”; the notice referred to the obligation of the licensee as being “to provide and maintain a safe environment in and around the Licensed Premises” and stated that the evidence of the numerous incidents demonstrated a failure by the licensee to comply with that obligation imposed by s 148A.[16] The Member’s negative answers to questions 1 and 2 resulted from substantially the same construction of s 148A(4). The correct construction is instead that set out in [30] of these reasons. The answers to questions 1 and 2 should be set aside.
Questions 3-4: consideration
- In relation to questions 3 - 4, the respondent submitted that the ground for disciplinary action in s 136(1)(h)(ii) - “use of the licensed premises, or the behaviour of persons entering or leaving the premises … causing disorderly conduct in, or in the neighbourhood of, the premises…” - was expressed in terms which precluded any implication that the specified state of affairs resulted from any act or omission of the licensee. The appellant submitted that this construction produced a result which was surprising, that “disciplinary action”, including action of a penal character in the form of substantial fines, could be taken against a licensee who was not guilty of any misconduct and who could not by any means have prevented the use of the licensed premises or the behaviour of persons entering or leaving the premises referred to in the provision. The appellant submitted that the exclusive remedy for the state of affairs described in s 136(1)(h)(ii) where that did not result from any act or omission of the licensee was instead the exercise by the chief executive of the power given by s 111 of the Liquor Act 1992 to vary a licence “in relation to … another matter for the purpose of ensuring compliance with this Act or minimising harm caused by alcohol abuse and misuse and associated violence.”[17] That power is not conditioned upon proof of any misconduct. It may be exercised after the chief executive has considered any written notice of objection to such a variation provided by the licensee (and in some cases, also by others) after the chief executive has given written notice of the proposed variation.[18]
- Section 136(1)(h) describes alternative causes of one or more of the circumstances set out in (i) and (ii). The first cause is “the use of the licensed premises”. The second cause is “the behaviour of persons entering or leaving the premises”. Of course the first could affect the second, but importantly they are expressed as alternative causes. The specification of a ground for disciplinary action which is based on s 136(1)(h) must identify which of these causes is relevant.
- The “use of the licensed premises” is not described more particularly as the licensee’s use of the licensed premises. It might be said that there is a “use of the licensed premises” which is made by patrons, although their conduct would seem to be addressed within the alternative cause within paragraph (h). Further, the statutory context suggests that the provision is concerned only with the licensee’s use of the premises. The “main” purpose of the Liquor Act 1992 is expressed in s 3 as being:
“(a)to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way compatible with –
(i)minimising harm, and the potential for harm, from alcohol abuse and misuse and associated violence; and
(ii)minimising adverse affects on the health or safety of members of the public; and
(iii)minimising adverse affects on the amenity of the community; and
…
(d)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
(e)to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence …”
- Section 3A of the Liquor Act 1992 then expresses the underlying principle for facilitating and regulating the liquor industry:
“(1)The underlying principle of this Act in relation to the sale and supply of liquor is –
(a)a person may obtain a licence to sell or supply liquor as part of conducting a business on premises; and
(b)liquor may only be sold or supplied on the licensed premises as part of the person conducting a business, on the licensed premises, that is the principal activity under the licence.
(2)This Act states the principal activity of a business that may be conducted under each type of licence.”
- Thus the Liquor Act 1992 contemplates that liquor is to be sold or supplied on licensed premises as part of the licensee’s conduct of a business on those premises. The Liquor Act 1992 then specifies the available licences that may be granted and held under the Liquor Act 1992[19] and in each case specifies the “principal activity of a business conducted under …” that particular licence.[20] In this context, the phrase “the use of the licensed premises” in s 136(1)(h) apparently refers to the activity of the business carried out at the licensed premises under the licence held for those premises. Upon any view, it is a reference to the use of premises which, being occupied by the licensee, are under its control. Therefore, a ground which relies upon that cause within s 136(1)(h) is concerned with the conduct, by act or omission, of the licensee.
- If the respondent was intending to prove its case by reference to this alternative within paragraph (h), it had to give notice of[21] and prove the acts or omissions of the licensee which were said to have caused one or more of the effects specified in subparagraphs (i) and (ii). In this case, the respondent gave a notice in purported compliance with s 137 which was expressed in terms of each of the alternative types of cause in paragraph s 136(1)(h). Similarly, it gave a notice of its decision under s 137A which contained a finding that “the use of the licensed premises and also the behaviour of persons entering and leaving the licensed premises is causing disorderly conduct in and in the neighbourhood of the licensed premises”. At least insofar as the respondent relied upon this first cause, namely “the use of the licensed premises”, it failed to comply with those provisions by failing to identify the relevant acts or omissions of the licensee. In the same way, it should have to prove in the Tribunal that there were such acts or omissions.
- The questions numbered 3 and 4 did not distinguish between these two types of cause of the circumstances in s 136(1)(h)(i) and (ii). The second possible cause, namely “the behaviour of persons entering or leaving the premises”, refers directly only to the conduct of persons other than the licensee. But the conclusion that the first cause in the opening words of s 136(1)(h) (“the use of the licensed premises”) concerns conduct of the licensee makes it seem unlikely that the second cause comprehends behaviour which is unrelated to its conduct. The construction of this provision must also take into account that it supplies grounds for what is stated in the introductory words of s 136(1) to be “disciplinary action” and to the potential consequences of that action. Those introductory words of s 136(1) require the meaning of the general words of paragraph (h) to be qualified in the sense that paragraph (h) is to be limited to circumstances which the licensee was able to control. We cannot accept that the powers of “disciplinary action” can be extended to a case where there is or could be no criticism of the licensee or no action which could be taken by the licensee in respect of the relevant circumstance. The reference to “the behaviour of persons entering or leaving the premises” is limited by the statutory context to the extent to which that behaviour was able to be controlled by some action of the licensee.
- That conclusion finds support in the very broad and surprising consequences which would flow from the respondent’s construction. The words “entering” and “leaving” in the introductory part of s 136(1)(h) cannot refer to the precise moment when a person steps through the entrance of the licensed premises. The references in (A) and (B) of that provision to the relevant behaviour affecting persons “in the neighbourhood of the premises” suggests that “entering” and “leaving” comprehend behaviour within a larger area or a longer period of time. The Liquor Act 1992 refers in a number of places to the conduct of the business by a licensee, and the licensed premises, in varying ways by reference to locality or surrounds. Thus: s 3 refers to a purpose of the Liquor Act 1992 as being to regulate “areas in the vicinity of licensed premises”; s 3A refers to the conduct of a business “on premises” or “on the licensed premises”; s 136(1)(h)(i) and (ii) uses the phrase “in the neighbourhood of the premises”; and s 148A imposes obligations on licensees and permittees for the purpose of ensuring that liquor is served, supplied and promoted in a way compatible with, inter alia, preserving the peace and good order “of the neighbourhood of the premises”. Further, one of the obligations imposed under s 148A(4) is that in issue on the first ground of this appeal, namely the obligation to provide and maintain a safe environment “in and around the premises”. A natural reading of that phrase would suggest that the area over which that obligation must be observed is more restricted than the “neighbourhood of the premises”. Section 125 permits the grant of a temporary authority where licensed premises are wholly or partially destroyed or damaged to the extent that they are unsuitable for the conduct of the business authorised under the licence. That authority may be granted in respect of any part or parts of the licensed premises, or “any neighbouring premises”. The phrase “neighbouring premises” seems narrower in scope than the phrase “in the neighbourhood of the premises”, but it is unnecessary to resolve that question. The terms “neighbourhood” or “neighbourhood of the premises” are not defined. In its various usages a “neighbourhood” can refer to immediate surrounds, a district or even a suburb.[22]
- With that context in mind, it is arguable, for example, that someone who walked out of a hotel, got into a car in the hotel car park and drove onto the street, was still in the process of “leaving the premises” as the person drove some distance on the street beyond the car park exit. Similarly, a person driving on the street towards but some distance from the hotel car park entry might be said to be “entering” the premises. It seems very unlikely that it was intended to subject the licensee to disciplinary action for undue annoyance or disturbance caused in such cases by a person which was unrelated to any conduct of the licensee. Assume a case in which a person was “leaving the premises” without having consumed any alcohol. (Whilst the Liquor Act 1992 gives primacy to the purpose of minimising harm from the abuse and misuse of alcohol, and regulating the industry to that effect,[23] the behaviour of the persons referred to in s 136(1)(h) is not limited to behaviour related to their consumption of alcohol. Indeed, the provision comprehends the behaviour of persons entering or leaving the premises regardless of whether they have imbibed any alcohol.) It is very difficult to accept that it was intended to expose the licensee to a substantial fine where such a person, for reasons unconnected with any conduct of the licensee, drove in such a manner as disturbed or annoyed persons in the neighbourhood.
- Another illuminating example may be postulated in the case of a licence issued in respect of a sporting venue. Some thousands of sporting fans attend a match. A substantial number of fans do not imbibe any alcohol but are outraged by the result of the sporting event. As they leave the premises, and travel through the neighbourhood, they engage in conduct which is unduly annoying or disturbing to the persons in that neighbourhood, or disorderly conduct. Nothing that the licensee could control, including the supply and sale of liquor, has caused or contributed to the behaviour of the persons leaving the licensed premises. It could hardly be said to be within the purposes of the Liquor Act 1992 that disciplinary action might be brought against the licensee when nothing the licensee did caused or contributed to the conduct, and the licensee was not in a position to exercise any control over what those persons did when they left the premises.
- Other examples may be postulated. Licences can be issued for a variety of premises. The familiar cases include hotels, restaurants, entertainment venues and clubs. However, the term “premises” is defined in s 4 to include “a vehicle, boat, aircraft, train or other means of transport”. Thus, licences issued in respect of a boat or a train means that the “licensed premises” themselves move from point to point, and stop at varying points on the way. In the case of a train which stops at intermediate stations before its eventual destination, at each of those points the licensed premises will have a different “neighbourhood”. The same can be said of a licensed entertainment vehicle which collects patrons and drops them off at various points along the journey. Once the train or vehicle has moved on, the licensee can have no semblance of control over where the departing persons go, or what they do. It is again very difficult to accept that the powers of disciplinary action extend to a case where the licensee could have no possible control over those leaving the premises. In the case of the licensed premises being a train or vehicle, the licensed premises move on from each neighbourhood once passengers have alighted. Except, perhaps, where the operator of the train also operates the station, the licensee will also have moved on. On the respondent’s construction the legislative intention was that a licensee who is no longer present at the “neighbourhood” is nonetheless liable to disciplinary action in respect of what persons leaving the premises do once they are in that neighbourhood. That is a manifestly unreasonable consequence of the respondent’s construction.
- The stated purposes of the Liquor Act 1992 to regulate the liquor industry and the sale and supply of liquor are achieved by imposing obligations and restrictions on the licensee conducting the business at licensed premises. It must follow that the behaviour referred to in s 136(1)(h) is causally related to the business of sale and supply of liquor under the relevant licence and thus potentially amenable to control by some action of the licensee.
Disposition and orders
- For these reasons, we would set aside the answers to preliminary questions 1 – 4. The remaining issue concerns the consequential orders which should be made. As the respondent pointed out, s 153 of the QCAT Act confers wide discretionary powers upon the Court concerning the disposition of an appeal under s 35 of the Liquor Act 1992. Section 153 provides that the Court may confirm or amend the decision, set aside the decision and substitute its own decision, set aside the decision and return the matter to the Tribunal for reconsideration, or make any other order it considers appropriate.
- The appellant contended that the Court should answer “yes” to the preliminary questions and declare that the decision under s 137A “was of no legal force or effect to the extent that it failed to identify any act or omission of the Appellant said to be a failure to provide and maintain a safe environment in and around the licensed premises within the meaning of s 148A(4) of the Act …”. One possible difficulty with that proposed declaration is that the concluding part of the text of the decision under the heading “Ground 1” (see [6] of these reasons) arguably identifies the numerous alleged incidents as being acts or omissions which, in terms of the proposed declaration, are “said to be a failure to provide and maintain a safe environment in and around the licensed premises …”. A potential uncertainty which might result from an affirmative answer to question 1, for example, is that the question does not specify how or when the actions or omissions must be “identified”. One possibility is that the actions or omissions should be identified expressly in the notice of proposed action under s 137 as an aspect of “the grounds for the proposed action”.[24] Although there was discussion of that possibility at the hearing of the appeal, the scope of the requirement to identify the grounds for the proposed action, the sufficiency of the notice in that respect, and any consequence of a failure to identify the grounds in the notice were not litigated at the hearing of the preliminary questions in the Tribunal.
- The respondent submitted that, if the court adopted the construction of s 148A(4) which we prefer, the respondent should have the opportunity to examine the evidence and identify what the respondent contended were the relevant acts or omissions of the licensee; the evidence before the respondent at the time of the decision would permit the respondent to contend, for example, that an unsafe environment was caused by the appellant’s conduct in permitting entry to the premises of intoxicated people or failing to adhere to the responsible service of alcohol. The appellant did not develop an argument that such an exercise was not practicable, but an affirmative answer to question 2 might be construed as precluding the exercise. There would be a similar difficulty in relation to question 4.
- There is another difficulty with answering the questions. Question 1 was not in terms of whether there could be a contravention of s 148A(4) absent some act or omission by the licensee. Nor was it in terms of whether the respondent, in taking disciplinary action based upon s 136(1)(a)(i) and s 148A(4), was obliged to identify the acts or omissions of the appellant which constituted the offence. Rather, question 1 enquired whether it was necessary for each incident of aberrant behaviour which the respondent had particularised, for it to identify an act or omission of the appellant which had resulted in that incident. Had that question been answered in the affirmative, then on one view, the respondent would have been put to the task of particularising and proving, incident by incident, a distinct act or omission which was specific to that incident, such as the supply of liquor to an intoxicated person who was involved in the incident. Yet even on the appellant’s argument about the proper interpretation of these provisions, it is far from clear that the respondent should be put to that task. The same difficulty existed for question 3, which suggested that the ground in reliance upon s 136(1)(h)(ii) required the identification and proof of an act or omission in relation to each incident.
- We accept that each of the grounds upon which the respondent relied required the proof of some act or omission of the appellant which had led to the circumstance of an unsafe environment in or around the premises or the disorderly conduct by patrons, as the case may be. But because the questions were not formulated according to the core issue between the parties, an answer to any of these questions could cause unintended consequences for the ultimate determination of the proceeding in the Tribunal.
- The orders sought by the appellant have the capacity to create much uncertainty. The appropriate course is instead to set aside the answers to questions 1 – 4 and remit the proceeding to the Tribunal. With the benefit of this Court’s construction of s 136(1)(h)(ii) and s 148A(4), the Tribunal should then exercise its function of conducting a fresh hearing on the merits of the question whether disciplinary action should be taken so as to produce the “correct and preferable decision”.[25]
- The orders are:
- Allow the appeal.
- Set aside the Tribunal’s answers to preliminary questions 1 – 4.
- Remit the matter to the Tribunal to proceed according to law.
- The parties have leave to make submissions on costs in accordance with paragraph 52 of Practice Direction No 3 of 2013, and upon the question whether paragraph (b) of the Tribunal’s answer to question 5 should be set aside.
Footnotes
[1] Liquor Act 1992, s 33(1)(a).
[2] This word “no” is omitted from question 4 as it is expressed in the Member’s reasons. That was an error; see the direction of 22 August 2012 setting down the questions for preliminary determination.
[3] Transcript 9 August 2013 at 1-16. The appellant did not formulate a different answer to question 5 in the “appellant’s contended form of order if construction questions are answered in its favour” supplied to the Court at the hearing of the appeal. Senior counsel for the respondent did not address submissions relating to question 5 for that reason: Transcript 1-27.
[4] (2004) 138 FCR 579 at [38].
[5] See, for example, the Macquarie Dictionary definition of “decision”.
[6] Revestar Pty Ltd v Chief Executive, Liquor Licensing Division [2008] QCCTL 12, especially at [36]‑[37].
[7] (2010) 239 CLR 531.
[8] (2010) 239 CLR 531 at 560-561.
[9] s 53 of the Occupational Health and Safety Act 1983 (NSW).
[10] (2010) 239 CLR 531 at 557-559 [26]-[29].
[11] s 137(1)(b), (c).
[12] (2010) 239 CLR 531.
[13] [2013] QCA 179.
[14] [2000] 2 Qd R 19.
[15] [2008] QCCTL 12 at [36]-[38].
[16] Notice of Decision, p 5 (AB140).
[17] Liquor Act 1992, s 111(2)(g).
[18] Liquor Act 1992, s 112.
[19] Section 58.
[20] For example: s 59 (commercial hotel licence); s 63 (commercial special facility licence); s 67 (subsidiary on-premises licence); s 68 (subsidiary off-premises licence); s 72 (producer/wholesaler licence); and s 76 (community club licence).
[21] Under s 137(1)(b), (c).
[22] Oxford English Dictionary.
[23] Section 3 of the Liquor Act 1992.
[24] Liquor Act 1992, s 137(1)(b).
[25] QCAT Act, s 20.