The AM Darling Unit Trust v Commissioner for Liquor and Gaming Regulation
[2017] QCAT 394
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- Unreported Judgment
- The AM Darling Unit Trust v Commissioner for Liquor and Gaming Regulation[2017] QCAT 394
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The AM Darling Unit Trust v Commissioner for Liquor and Gaming Regulation[2017] QCAT 394
The AM Darling Unit Trust v Commissioner for Liquor and Gaming Regulation[2017] QCAT 394
CITATION: | The AM Darling Unit Trust t/as AM Darling Pty Ltd v Commissioner for Liquor and Gaming Regulation [2017] QCAT 394 |
PARTIES: | The AM Darling Unit Trust t/as AM Darling Pty Ltd (Applicant) v Commissioner for Liquor and Gaming Regulation (Respondent) |
APPLICATION NUMBER: | GAR193-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 17 October 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member SM Burke |
DELIVERED ON: | 13 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of respondent’s decision to refuse the applicant’s request to vary hotel licence GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – application for leave to lead new evidence under s 34 of the Liquor Act 1992 (Qld) – where evidence not available at the time of the decision the subject of review – where evidence came into existence after the decision – proper interpretation of Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24 Liquor Act 1992 (Qld), s 33, s 34 Butler & Ors v OLGR and GBBC Pty Ltd [2012] QCAT 226 |
APPEARANCES: |
|
APPLICANT: | M Jones Liquor & Gaming Specialists Pty Ltd |
RESPONDENT: | D Robinson Department of Justice and Attorney-General |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REPRESENTATIVES: |
|
APPLICANT: | Matthew Jones |
RESPONDENT: | Dominic Robinson |
REASONS FOR DECISION
- [1]By application to review a decision dated 13 July 2017, the Applicant sought the review of a decision of the Respondent dated 15 June 2017.
- [2]The Commissioner for Liquor and Gaming (“the Respondent”) refused the Applicant’s request to vary its commercial hotel licence by endorsing conditions declaring the entire premises known as Darling & Co (“the premises”) as not regulated for the purposes of networked ID scanning or amending the regulated hours so that ID scanning does not commence unless the premises is trading after midnight (“the reviewable decision”).
- [3]The reviewable decision determined that from 1 July 2017, the Applicant would be required to comply with ID scanning requirements from 10pm on each trading day which was approved for extended trading hours. The reasons for the decision are set out in the determination dated 15 June 2017.
- [4]The Applicant’s application stated that the Respondent erred in that:
Section 173EH(8) and (9) of the Liquor Act 1992 (“the Act”) provides a discretion for a premises or part of a premises to be exempted from the requirements to undertake ID scanning of patrons prior to entry to the relevant premises and for the regulated hours for scanning to be adjusted (“the exemption applications”).
There are no express criteria in the Act for consideration of exemption applications. An official Guideline (Guideline 59) has been published and purports to outline the matters which will be taken into consideration for exemption applications.
The facts and circumstances of the application provided a satisfactory basis for exemptions having regard to the matters set out in the Guideline and to the Act as a whole.
No valid or compelling basis can or has been identified or communicated for the refusal of the application.
- [5]The Statement of Reasons for the Respondent’s reviewable decision was delivered to the tribunal on 18 August 2017. The Statement of Reasons sets out in full the framework of the legislation in relation to the mandatory obligations imposed under the Liquor Act 1992 (Qld) (“the Liquor Act”) in relation to ID scanning regulations and the Respondent’s powers under the Act.[1] For the purpose of this application, it is not necessary to reiterate those provisions in full.
- [6]This is an application by the Applicant for leave to rely upon new evidence comprising (“the proposed new evidence”):
- the analytics from the Scantek ID Scanning system installed at the Applicant’s premises for the period 1 July 2017 to 10 September 2017;
- the list of persons subject to the banning orders for the premises as at 14 September 2017; and
- the statutory declaration of Mr Rohan Topley dated 14 September 2017.
- [7]The functions of the tribunal in determining a review of a decision are set out in Chapter 2 Part 1 Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”). For the purpose of the present application, it is not necessary to traverse the jurisdiction conferred on the tribunal.
Relevant Legislation
- [8]Section 33 of the Liquor Act provides that the tribunal is to decide the review on the evidence before the Commissioner.
- [9]Section 33 relevantly provides:
- (1)In a proceeding for a review of a decision of the Commissioner by the tribunal, the tribunal must -
- (a)hear and decide the review of the decision by way of a reconsideration of the evidence before the Commissioner when the decision was made; and
- (b)decide the review of the decision in accordance with the same law that applied to the making of the original decision.
- [10]Section 34 of the Liquor Act relevantly provides:
34 Tribunal may give leave for review to be decided on new evidence in particular circumstances
- (1)Despite section 33, the tribunal may grant a party to a proceeding for a review of a decision of the Commissioner (the decision) leave to present new evidence if the tribunal is satisfied –
- 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
- in the circumstances, it would be unfair not to allow the party to present the new evidence.
- [11]“New evidence” is defined as evidence that was not before the Commissioner when the decision was made.
- [12]The Appellant contends that the proposed new evidence could not possibly have been known to the Applicant before the decision was made as it had not come into existence. Accordingly, s 34(1)(a) of the Liquor Act is satisfied.
- [13]Further, the Applicant submits that the data contained in the proposed new evidence is highly relevant to the matters advanced in support of the original application for an exemption and thus it would be unfair not to allow the evidence to be considered either before the Respondent or in the review application. The Applicant further states that the proposed new evidence allows a direct comparison between the demographic of the Applicant’s patrons who have been scanned and those to whom the banning notice system applies and thus is highly relevant to the matters for consideration in assessing the request for an exemption.
- [14]The Applicant relies upon the decision of this tribunal in Cooper & Ors v Commissioner for Liquor and Gaming & Anor [2014] QCAT 627 at [10] for the proposition that s 34 does not necessarily preclude the receipt of new evidence which came into existence after the reviewable decision was made.
- [15]The Respondent refers the tribunal to cases in which the tribunal has granted leave for the receipt of new evidence based on circumstances where a party has been precluded from having knowledge of certain documents.[2]
- [16]The wording in s 34(1) is clear that the new evidence is limited to circumstances where the party did not know or could not reasonably have expected to have known of the existence of the new evidence before the decision. It does not refer to evidence which comes into existence after the decision was made. If that interpretation had been intended it would have been easy to make that intention clear.
- [17]A proper interpretation of the s 34(1)(a) is that it must refer to evidence which was in existence at the time but for some plausible reason it was not accessible to the party intending to rely upon it.
- [18]Evidence which comes into existence after the reviewable decision does not fall into the category in s 34(1)(a).
- [19]Any evidence which comes into existence after the reviewable decision has been delivered should be the subject of a subsequent application, if at all. If this were not the case, there would be no certainty of an ending to the process for the decision-maker.
- [20]The decision of Senior Member Oliver in Butler & Ors v OLGR and GBBC Pty Ltd [2012] QCAT 226 clearly sets out the proper interpretation of s 34:
[6] In the applicant’s submission they acknowledge that the tribunal must decide the case on the evidence that was before the Commissioner when the decision was made. However, they also contend that this new evidence falls within section 34(2) of the Act because the Commissioner could not have known about this evidence at the time the decision was made.
[7] Obviously that contention is correct. However, the Commissioner can only rely on the evidence that was available at the time the decision was made. This evidence was not available and could never have been available because the business was not in fact operating. It would be incongruous for the Commissioner to grant the licence and then for the tribunal to consider, in the review application, the conduct of the licensee after the business became operational to determine if the Commissioner’s decision should be confirmed or set aside………..
[8] This is not a case where some evidence was in existence at the time the decision was made, was relevant to the consideration of whether the licence should be granted, and not put to the Commissioner.
[9] Although section 20 of[3] the QCAT Act says that it is the tribunal’s function to produce the correct and preferable decision and must do so by way of a fresh hearing on the merits, section 20 must be read with section 33 of the Liquor Act. It seems to me the intention of s 33 is to limit the evidence the tribunal can consider to that which was before the Commissioner or under s 34, any evidence that may have been available at the time of the decision was made but not considered by the Commissioner. As the Liquor Act is the enabling Act it takes precedence over the application of section 20 of the QCAT Act. In these circumstances, the application to lead fresh evidence by the applicants is refused.
- [21]The present circumstances are analogous to those considered in Butler & Ors v OLGR and GBBC Pty Ltd.
- [22]The proposed new evidence is not evidence which falls into the category contemplated by s 34(1)(a) of the Act.
- [23]The correct process for the Applicant is to make a further application to the Commissioner in the event that the material supports an application for exemption.
- [24]In the circumstances, the application for leave to present the proposed new evidence is refused.
Footnotes
[1] Sections 107C and ss 111 and 112 of the Act; Sections 173EF to 173EH of the Act; See paragraphs 2 to 24 of the Statement of Reasons
[2] Drake v Chief Executive, Office of Liquor and Gaming Regulation [2013] QCAT 238; Cooper & Ors v Commissioner for Liquor and Gaming & Anor [2014] QCAT 627.
[3] Amended due to typographical error on 30 November 2017.