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Saccharomyces Pty Ltd v Commissioner for Liquor and Gaming QCAT 39
Saccharomyces Pty Ltd v Commissioner for Liquor and Gaming  QCAT 39
Saccharomyces Pty Ltd
Commissioner for Liquor and Gaming
General administrative review matters
13 and 20 January 2016
20 January 2016
GENERAL ADMINISTRATIVE REVIEW - LIQUOR AND GAMING REGULATION-Where commercial hotel licence sought - whether premises meets requirements of Part 4 Division 2, and especially s 61, of the Liquor Act 1992 - whether premises has a function room facility - where intended business includes selling liquor for consumption both on and off the licenced premises - if requirements of Part 4 met, whether the sale of liquor proposed would be more appropriately carried out under a bar licence
Liquor Act 1992 (Qld), Part 4 div 2, s 4A, s 4, s 33, s 34, s 59, s 60, s 61, s 105, s 118, s 121
Acts Interpretation Act 1954 (Qld), s 14A
Liquor Act 1992 (Qld), pt 4, pt 5, s 3, s 3A, s 4A, s 33, s 34, s 58, s 59, s 60, s 61, s 66, s 67, s 67A, s 70, s 105, s 107, s 118, s 121
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 100, s 102
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412
Mr Russell Steele from RSA Liquor Professionals represented Saccharomyces Pty Ltd
Mr R Vize, in-house lawyer, Office of the Commissioner for Liquor and Gaming, appeared for the Commissioner for Liquor and Gaming
REASONS FOR DECISION
- Saccharomyces Pty Ltd (‘Saccharomyces’) proposes to operate a niche business namely, a small boutique hotel offering bar, dining and function facilities focusing on the emerging market for and popularity of craft beers. According to Sacchromyces, the craft beer industry operates through mostly small specialist or boutique hotels and bars, as the larger hotel sector largely does not purchase/offer craft beer. Under its business model, it proposes to sell a wide variety of craft beers for consumption on the licensed premises, as well as, off the premises (some by way of ‘growlers’ which are popular in the craft beer sector).
- Sacchromyces made application to the Commissioner for Liquor and Gaming (‘the Commissioner’) for a commercial hotel licence. The application was refused by the Commissioner in September 2015. Saccharomyces has sought review of the Commissioner’s decision to refuse its application for a commercial hotel licence.
- In the meantime, on the further application of Saccharomyces, the Commissioner subsequently granted a bar licence to it.
Legislative framework for the review
- For a review, the Tribunal has all the functions of the decision-maker (in this case, the Commissioner) for the reviewable decision. The purpose of the review is to produce the correct and preferable decision. The review must be conducted by way of a fresh hearing on the merits of the application. The Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return it for reconsideration to the decision maker with or without directions.
- Under the Liquor Act 1992 (Qld) (‘Liquor Act’) the Tribunal must generally decide a review by way of reconsideration of the evidence before the Commissioner when the decision was made. Further, it must decide the review in accordance with the law that applied to the making of the original decision. However, the Tribunal may grant leave to a party to the review to present new evidence if the Tribunal is satisfied as follows:
- (a)the party did not know, and could not reasonably be expected to have known, of the existence of the new evidence before the decision; and
- (b)in the circumstances, it would be unfair not to allow the party to present the new evidence.
- If leave is granted to present new evidence, the Tribunal is obliged to adjourn the proceedings for a reasonable time to allow the Commissioner to consider the new evidence and reconsider the decision and for affected persons to make submissions. New evidence is defined to mean evidence that was not before the Commissioner when the decision was made.
- Part 4 of the Liquor Act sets out the requirements in relation to licences under the Act. Division 2 relates to commercial hotel licenses. In particular, ss 59 to 61 relevantly set out requirements. These include that the principal activity of the business conducted under a commercial hotel licence is the sale of liquor for consumption on the premises or on and off the premises, together with provision of meals and accommodation and provision of function facilities. A commercial hotel licence authorises the licensee to sell liquor on the premises for consumption on and off the premises.
- The Commissioner may grant a commercial hotel licence only if the requirements set out in s 61 are satisfied. They are as follows:
61 Restrictions on grant of commercial hotel licence
- (1)The commissioner may grant a commercial hotel licence only if the commissioner is satisfied of the following—
- (a)the business to be conducted under the licence on the licensed premises will have the principal activity as mentioned in section 59(1);
- (b)the business to be conducted under the licence on the licensed premises will have a commercial kitchen and at least 2 of the following facilities—
- (i)a dining, restaurant, or bistro-style, facility;
- (ii)self-contained accommodation of at least 3 rooms for letting to travellers;
- (iii)a function room facility available for hire by members of the public;
- (c)the licensed premises—
- (i)have the capacity to seat more than 60 patrons at any one time; and
- (ii)have toilet facilities for male and female patrons of the business to be conducted under the licence on the premises.
- (2)The commissioner must not grant a commercial hotel licence to a person—
- (a)for premises the commissioner reasonably considers are, or are to be, used primarily as a supermarket; or
- (b)if the commissioner considers that the sale of liquor proposed to be carried on under authority of the licence would more appropriately be carried on under the authority of a licence of another kind.
- (3)Also, the commissioner must not grant a commercial hotel licence to an incorporated association under the Associations Incorporation Act 1981.
- Part 5 of the Liquor Act provides for applications for the granting of licences. In particular, s 105 (and the following provisions) set out requirements for applications. Section 107(4) provides that the Commissioner may grant an application only if the premises are suitable for the licence applied for. Section 121 of the Liquor Act sets out matters to which the Commissioner must have regard in deciding whether to grant an application. Relevantly, the requirements include a community impact statement; any objections made to the grant of the application; comments from local government; comments from police for the locality; and the impact on the amenity of the community concerned.
- Sections 3 and 3A, respectively, set out the main purposes of the Liquor Act and the principle underlying the Act (for facilitating and regulating the liquor industry). Relevantly, s 3 provides as follows:
3 Main purposes of Act
The main purposes of this Act are—
- (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
Examples of harm—
• adverse effects on a person’s health
• personal injury
• property damage
- (ii)minimising adverse effects on the health or safety of members of the public; and
- (iii)minimising adverse effects on the amenity of the community; and
- (b)to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change; …
- (d)to provide for a flexible, practical system for regulation of the liquor industry of the State with minimum formality, technicality or intervention consistent with the proper and efficient administration of this Act….
- Section 3A provides as follows:
3A Principle underlying this Act 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.
- (3)This Act must be administered in accordance with the underlying principle of this Act.
- (4)This section applies subject to the main purpose of this Act mentioned in section 3(a).
The application for leave to present new evidence
- Saccharomyces filed an application seeking leave to present new evidence in the review. In particular, it sought to present a document entitled ‘Saccharomyces Function Pack’; a document entitled ‘Epson’ which is marked-up plan of the premises showing a breakdown of available function areas; and some 22 photographs of the fitted out premises (the premises were not completed at the time of the decision). Further, in so far as its submissions set out any evidence, it sought to present those as well. The Commissioner opposed this application.
- After hearing submissions from the parties, I granted leave for Sacchromyces to present new evidence by way of the photographs (as described in Sacchromyces submissions) and the function pack, but not the marked-up plan.
- As required by the Liquor Act, I then adjourned the proceeding briefly to allow the Commissioner to reconsider the decision together with the new evidence. Following the reconsideration, the Commissioner’s decision was unchanged.
The review of the decision to refuse a commercial hotel licence
- The Commissioner’s submission acknowledges that in the process of determining whether to grant the application, he was satisfied that the applicant had met all of the prescribed procedural requirements. The applicant’s risk assessed management plan had been assessed and recommended for approval, having satisfactorily addressed issues relating to noise and impact on amenity. The Commissioner was satisfied that the Applicant’s community impact statement substantially addressed all relevant matters. The Commissioner was satisfied that police and council had been advised and that the necessary advertising (in accordance with s 118 of the Act) had occurred. There were no public objections made to the grant of the application. There was no objection from the council. There was no objection from the police. The Commissioner raises no concerns about potential harm.
- The Commissioner accepts that depending on the management plans for the premises, the requirements of s 59(1) are capable of being met. The Commissioner considers that the business met or could meet all of the necessary requirements for a commercial hotel licence under Part 4, except the requirement provided in s 61(1)(b) that the business must have at least two of the named facilities set out in s 61(b)(i),(ii), and (iii). Section 61(b)(ii) is irrelevant because the premises does not have accommodation facilities. Although he accepts that Saccharomyces has a ‘dining, restaurant or bistro-style facility’ in accordance with s 61(1)(b)(i), the Commissioner did not, and does not, accept that it has a function room facility within the meaning of s 61(1)(b)(iii).
- I have perused the material. I accept the Commissioner’s assessment that all procedural requirements have been satisfactorily fulfilled. It is uncontroversial that the community impact statement and the risk-assessed management plan are satisfactory. There are no objections requiring consideration.
- Having regard to the business which Sacchromyces proposes to conduct as discussed throughout these reasons, I am satisfied that its proposed principal activity is the sale of liquor for consumption on and off the premises, and that it otherwise meets the requirements of s 59(1).
- The live controversies are whether Sacchromyces has a function room facility available for hire by members of the public and, if the Tribunal accepts that it does, whether, as the Commissioner submits, the proposed sale of liquor would be more appropriately carried on under the authority of a licence of another kind. The Commissioner also submits, referring to s 107(4) of the Liquor Act, that the premises are not suitable for the licence applied for, having regard to these factors.
Does the premises have a function room facility?
- It is uncontroversial that Saccharomyces has an area set aside which seats some 12 persons as its intended function room facility. It is an area at the back of the venue immediately adjacent to and separated by a wall, from the main bar area. There is a step up to the function room from the general floor level of the premises. The room is furnished with a single dining table surrounded by some 12 stools. It has fixed walls on three sides. A curtain is in place which can be pulled across the open side of the area to separate it from rest of the venue. The proposed function room is small, having an area of about 12.34m.2
- Sacchromyces argues that although it is modest in size, it is proportionate to the scale of the premises. It submits that South Bank area already has various large function venues available, by way of the Convention Centre and the Fox Hotel. This is not the market in which it seeks to operate/participate. It proposes to offer smaller flexible spaces. As the function pack sets out, in addition to the function room, other areas of the premises are available for hire for larger functions. Sacchromyces submits that this can be done, while the café area (which is adjacent to the commercial kitchen and which has its own servery/bar area), remains open to the general public.
- Saccharomyces argues that having regard to the lack of definition of function room facility that the ordinary meaning should be adopted. It argues that the ordinary meaning must be considered in light of the purposes of the Liquor Act, which include facilitating and regulating the optimum development of the tourist, liquor and hospitality industries in the state, while having regard to the welfare, needs and interests of the community.
- The Commissioner submits that the small space set aside as a function room facility does not satisfy the legislative requirements. He argues that the legislation contemplates that there are higher standards for commercial hotel licences, which he suggests, are appropriate for larger premises. He relies upon dictionary definitions of the word ‘function’ to submit, in effect, that the Liquor Act contemplates that a function room facility is a space which can host a range of gatherings for different types of special occasions. Therefore, he submits that a room which can accommodate a small private meal, with limited privacy, was not a realistic reflection of what the community expects of a function room facility. Sacchromyces submits that the Commissioner’s approach favours big business and large facilities.
- The application for a commercial hotel licence must be considered on its merits in accordance with the legislation. The term ‘function’ is defined in the Liquor Act as follows:
4A Meaning of function
- (1)Function is an event or occasion to which persons are invited by, or for, the organiser of the event or occasion.
- (2)However, function does not include an event or occasion organised—
- (a)by the owner or licensee of the licensed premises where the event or occasion is held if the event or occasion is for the owner’s or licensee’s own benefit; or
- (b)by someone else if the owner or licensee of the premises where the event or occasion is held is entitled to receive a benefit other than a charge for using the premises and providing catering facilities.
- The Liquor Act does not define a function room facility.
- The Liquor Act does not contain a minimum size specification for a function room facility. The requirement is expressed in general terms. The only relevant size restriction for a commercial hotel licence is that a commercial hotel licence may only be granted if the premises has the capacity to seat more than 60 patrons at any one time, (provided of course that it meets all of the other criteria). It is uncontroversial that Sacchromyces meets that criteria. Although it is currently confined to 60 seats because it holds a bar licence only, it says that it has the capacity to seat over 90 patrons at one time. (The Commissioner’s staff suggest that it can seat some 112 persons).
- The Liquor Act definition of function is unambiguous. As a matter of statutory interpretation, there is no basis to adopt a dictionary definition. As defined in the Liquor Act, a function is an event or occasion to which people are invited by the organiser, which does not fall within the exclusions in s 4A. Some functions will be large, and some small. Some will be suited to more formal surroundings, others are better accommodated in a casual setting. The Liquor Act definition of function is broad enough to encompass events or occasions of various styles and sizes.
- The Commissioner does not suggest that events which meet the Liquor Act’s definition of function cannot be held in Sacchromyces’ intended function room facility. The primary argument seems to be that the function room facility is not large enough to accommodate some sorts of functions. On a plain reading of the Liquor Act, this does not seem to me to be relevant. On a plain reading, a function room facility is one in which functions, as defined, may be held. In my view, there is no basis to imply an alternative dictionary definition of function into the interpretation of the term, function room facility. Having regard to the definition of function, it seems to me that a function room facility must be read sufficiently broadly as to cover function room facilities of varying sizes and styles.
- The manner in which I interpret the term function room facility is in keeping with the main purposes of the Act and the underlying principle for its administration. Parliament makes its intention clear that the main purposes of the Liquor Act include facilitating optimum development of the tourist, liquor and hospitality industries having regard to the needs and interests of the community. Its purposes also include providing a flexible system for regulation of the industry with minimal formality, technicality and intervention as is consistent with the safety and welfare of community members and the community generally. It is an interpretation which best achieves the purposes of the Act, because it is consistent with optimum development of the tourist, liquor and hospitality industries by responding to community demand in emerging markets for new types of venues and it is consistent with a flexible, practical system for regulation of the liquor industry.
- I accept, as Sacchromyces argues, that a 12 seat function room is proportionate to the size of the venue overall. Further, I accept that the craft beer market is a popular, emerging and boutique/specialist market for which there is community demand. It is reasonable to infer that there is community demand for varying sizes and styles of function room facility to suit diverse types of functions. I am satisfied that a finding that Sacchromyces’ function room facility meets the requirements of the Liquor Act would be consistent with the Liquor Act’s main purposes and the underlying principle. The Commissioner argued that it would not be of optimal quality. However, I am satisfied that optimum development of the tourist, liquor and hospitality industry is facilitated by offering community members the choice of a boutique-style function room facility suitable for modestly sized functions in a premises focusing on the emerging popularity of the craft beer market.
- For completeness, I note that the parties’ submissions refer to an issue earlier raised by the Commissioner about the adequacy of the curtain to close off the function room from the rest of the premises. However, this was not agitated vigorously at the hearing. The adequacy of the means of dividing a function room facility from other areas of any premises is a matter to be considered on its merits in each application. In these circumstances, of a small, casual-style function room facility in a small boutique premises, I am satisfied that the curtain is adequate.
- Having regard to these matters, I find that the function room facility at Sacchromyces meets the requirement specified in s 61(1)(b)(iii).
- In the alternative, Sacchromyces submits, and I would also accept, that it also intends to hire other areas of the premises as function room facilities, although it does not press the argument that it could make the entire premises available for a function. Accordingly, the café and servery/bar at the front of the premises would continue to operate at all times. In light of my findings set out in the preceding paragraphs, I do not need to consider that submission. If I am wrong in concluding that the function room facility meets the requirements of s 61(1)(b)(iii), then I make the observation that I would be satisfied that the arrangements set out in the function pack as far as they do not extend to hiring out the whole of the premises satisfy the requirement for a function room facility. If the café and servery/bar operate at all times, I would be satisfied that s 61(1)(b)(i) and (iii) are satisfied.
- I also make the observation that, it seems to me, that the imposition of a gloss on the requirements of the Liquor Act, such that a function room facility must have the capacity to seat a particular number of persons or have a minimum room area specification, would appear to be inconsistent with the flexibility intended by the Liquor Act to promote optimum development of the tourist, liquor and hospitality industries through a flexible regulation system, with due regard to community safety and welfare. The main purposes and the underlying principle of the Liquor Act contemplate that both smaller and larger scale business operations may potentially obtain licences, including a commercial hotel licence, if they meet all prescribed requirements. Each application must be considered on its merits having regard to the legislative requirements.
Would another kind of licence be more appropriate than a commercial hotel licence?
- The other controversial issue arises from s 61(2), which provides that the Commissioner must not grant a commercial hotel licence, if the sale of liquor proposed to be carried out under the licence would more appropriately be carried out under another kind of licence.
- The licences which may be granted under the Act are set out in s 58. It is uncontroversial that the only licence which may possibly be relevant, other than a commercial hotel licence, is a ‘commercial other licence.’ ‘Commercial other’ licences available relevantly include a subsidiary on-premises licence (where the sale of liquor is for consumption on the premises is a subsidiary aspect of the business, which is, for example, provision of meals served for eating on the premises); and a bar licence (where the principal activity of a business is the sale of liquor, on premises having the capacity to seat not more than 60 persons, for consumption on the premises). The parties submissions do not suggest that any other possible licences are relevant for consideration. Nor do I consider they are.
- However, neither of these ‘commercial other’ licences as identified would authorise Sacchromyces to carry out its intended business, as a licensed premises specialising in craft beer, which sells liquor for consumption both off and on-premises. A subsidiary on-premises licence is not appropriate since the principal activity of Sacchromyces business is the sale of liquor: it is not a subsidiary aspect of the business. A bar licence is appropriate for premises which have the capacity to seat not more than 60 persons. Sacchromyces premises have the capacity to seat at least 90 persons.
- Accordingly, I find that the sale of liquor Sacchromyces proposes to carry out would not be more appropriately carried out on the authority of a licence of a different kind. The only appropriate licence kind is a commercial hotel licence.
Are the premises suitable for a commercial hotel licence: section 107(4)?
- I have the photographs of the fitted out premises before me. The Premises are nicely presented and finished. They have a rustic, casual quality.
- The Commissioner says he has broad powers to determine standards when determining an application and must exercise his discretion in considering an application. He submits that in facilitating and regulating optimum development of the tourist, liquor and hospitality industries that the premises is not of optimal quality and therefore unsuitable for a commercial hotel licence. As I understand the Commissioner’s submissions, they relate again to the nature of the function room facility, which I have found meet the requirements of s 61. The evidence also refers to the absence of a discrete area for the sale of liquor for consumption off the premises.
- In the boutique market in which Sacchromyces proposes to operate, I am satisfied that the absence of a discrete area for the sale of liquor for consumption off the premises, does not detract from the suitability of the premises given that it is a small premises, on which the filling of growlers from on-tap craft beers at the bar areas for consumption off-premises is reasonably anticipated.
- I am satisfied that Sacchromyces’ premises are suitable for the conduct of business under a commercial hotel licence.
Conclusions and Orders
- I find that Sacchromyces’ application has satisfied all of the legislative requirements and that its application for commercial hotel licence should be granted.
- Accordingly, the correct and preferable decision is to set aside the Commissioner’s decision refusing the application for a commercial hotel licence and to substitute my own decision granting it, subject to its relinquishment of the bar licence it currently holds and subject to appropriate conditions.
- At the hearing, the Commissioner was not in a position to make submissions about conditions considered appropriate if the licence was granted. For this reason, I advised the parties that I would relist the matter for further submissions if Sacchromyces is successful on the review application.
- I relisted the matter to hear further submissions from the parties about appropriate conditions on 20 January 2016. The Commissioner proposed certain conditions which were accepted as appropriate by Sacchromyces. They are as follows:
The surrender of the Commercial Other Bar Licence bearing licence number 179672 be made to the Commissioner for Liquor and Gaming;
LL274 – Liquor may be sold or supplied only whilst the premises adheres to its principal activity of the sale of liquor for consumption on the licensed premises, or on and off the premises;
LL108 – Liquor may not be sold for consumption off the licensed premises after 10:00pm or be taken away from the premises after 10:30pm;
LL250 – noise emanating from the premises including amplified or non-amplified noise and patron noise must not exceed 75dB(C), fast response, when measure approximately 3 meters from the primary source of the noise;
LL253 – non-amplified entertainers or speakers used to amplify noise must not be located in any outdoor verandah, patio or footpath area of the premises.
- I am satisfied that the conditions are appropriate.
- I make orders accordingly.
- Sacchromyces seeks some limited costs, by way of its filing fee and the application fee for a bar licence necessitated by the refusal of the commercial hotel licence.
- I have concluded that the interests of justice do not require a costs order. The legislation does not contain specifications about the required size of a function room facility. That said, the points at issue do appear to be relatively novel. In any event, the larger part of the costs sought relate to the application for the bar licence. It is not a legal cost or a cost incurred in the review proceeding: it is an incident of operating the business. There does not appear to me to be a basis to grant costs in respect of it, even if I had concluded that the interests of justice required that a costs order be made for it in these proceedings.
- The costs application is dismissed.
Exhibit 3, page 204.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 19(c).
QCAT Act, s 20.
Ibid, s 20(2).
Ibid, s 24(1).
Liquor Act, s 33(1)(a).
Liquor Act, s 33(1)(b).
Ibid, s 34.
Ibid, s 34(2).
Ibid, s 34(3).
Ibid, s 59(1).
Ibid, s 60(1).
Liquor Act, s 34(2). I note also that there are no affected persons who would also be entitled to make further submissions in accordance with s 34(2).
Liquor Act, s 3(a).
Although it had earlier argued/proposed that the entire premises could be hired out for a function, it did not press that argument at hearing.
Liquor Act, s 3(b).
Liquor Act, s 61(1)(c)(i).
Exhibit 3, page 305.
As required by the Acts Interpretation Act 1954, s 14A.
Liquor Act, s 58(1)(c).
Liquor Act, s 66(a), s 67 and s 67A.
Liquor Act, s 70.
QCAT Act, s 100.
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412.
QCAT Act, s 102.
- Published Case Name:
Saccharomyces Pty Ltd v Commissioner for Liquor and Gaming
- Shortened Case Name:
Saccharomyces Pty Ltd v Commissioner for Liquor and Gaming
 QCAT 39
20 Jan 2016