Exit Distraction Free Reading Mode
- Unreported Judgment
Sandglass Pty. Ltd. trading as Café 63 Noosa v Commissioner for Liquor and Gaming QCAT 3
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Sandglass Pty Ltd trading as Café 63 Noosa v Commissioner for Liquor and Gaming  QCAT 3
SANDGLASS PTY LTD TRADING AS CAFÉ 63 NOOSA
COMMISSIONER FOR LIQUOR AND GAMING
General administrative review matters
24 January 2019
20 November 2018
GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – LICENCE FEES – GENERALLY – where risk criterion fee to be paid if licensee convicted of an offence – whether new licensee liable where offence committed by previous holder of licence
Liquor Act 1992 (Qld), s 113
Liquor Regulation 2002 (Qld), s 36CA
APPEARANCES & REPRESENTATION:
M Jones, Liquor and Gaming Specialists Pty Ltd
K M Hillard
REASONS FOR DECISION
- The applicant, ‘Sandglass’, operates a café. It holds a liquor licence for the café. The main issue to be decided in this case is whether it is liable to pay a ‘risk criterion fee’ as part of its liquor licence fees for the 2018/2019 financial year. The risk criterion fee is $13,500. A risk criterion fee is a fee imposed in certain circumstances in addition to the ‘base fee’ of $694.60.
- Relevantly, a risk criterion fee is added to the base fee for a licence if ‘the licensee was convicted of an offence against the Act and, in the previous licence period … the time to appeal against the conviction ended …’: section 36CA(2)(b) of the Liquor Regulation 2002 (Qld) (‘Liquor Regulation’). The Act referred to is the Liquor Act 1992 (Qld) (‘Liquor Act’). The previous licence period in the present case is the 2017/2018 financial year.
- Sandglass argues that it is not liable to pay the risk criterion fee because it was not convicted of any offence.
- The Commissioner for Liquor and Gaming (‘the Commissioner’) argues that Sandglass is liable because the previous licence holder was convicted of an offence against the Liquor Act and the appeal period ended within the 2017/2018 year. The previous licence holder was Buddha on Hastings Pty Ltd (‘Buddha on Hastings’). The licence was transferred to Sandglass in January 2018. Buddha on Hastings was convicted in May 2018 of offences committed before the transfer of the licence to Sandglass.
- In arguing that Sandglass is liable under section 36AC of the Liquor Regulation, the Commissioner points to section 113(3) of the Liquor Act. That section says that ‘on transfer of a licence, the transferee becomes the licensee and … is subject to the obligations imposed by this Act or the conditions of the licence on the holder …’.
- The decision under review is the decision of the Commissioner on 7 August 2018 to reassess the licence fees payable by Sandglass for 2018/2019. Prior to that, on 30 July 2018, Sandglass had self-assessed its liability at $694.60, which is the base fee. The reassessment by the Commissioner added $13,500, being the risk criterion fee.
- The Commissioner argues that the Tribunal’s power in the proceeding is limited, by section 36O of the Liquor Regulation, to either refusing Sandglass’s application or allowing Sandglass a period to pay the disputed fee.
- This argument is misconceived. Section 36O is within Part 8 Division 6 of the Liquor Regulation. That Division is made pursuant to section 208(3)(b) of the Liquor Act. Division 6 sets up a regime for a licensee to apply to the Tribunal for additional time to pay a fee in certain circumstances. That is not the nature of Sandglass’s application. It is true that Sandglass has not paid the risk criterion fee, but that is because the Tribunal granted a stay. Sandglass’s application to the Tribunal is for the review of the Commissioner’s decision to reassess the amount of the fees. The review is therefore pursuant to section 21(1)(v) of the Liquor Act, which enables the Tribunal to review decisions of the Commissioner in relation to a fee payable in respect of a licence.
- Perhaps the genesis of the misconception is an inaccurate reference in the Commissioner’s reassessment letter to the right of review being under section 36N of the Liquor Regulation.
- It is also argued on behalf of the Commissioner that the imposition of a risk criterion fee is not a ‘decision’ but simply the product of the automatic operation of the legislation. As no discretion is involved, there is no reviewable decision.
- I also reject this argument. Certainly there is no discretion involved. However, a decision was made by the Commissioner that the risk criterion fee applied in the circumstances and therefore a fee reassessment was required. This is a decision of the Commissioner in relation to a fee payable in respect of a licence. It is therefore a reviewable decision under section 21(1)(v) of the Liquor Act.
Is Sandglass liable to pay the risk criterion fee?
- Both parties point to fairness or policy considerations supporting their positions.
- The following is a summary of Sandglass’s arguments on these factors. It is unfair that it should have pay the risk criterion fee when it did not commit any offences and it did not know that Buddha on Hastings had. It dealt with the lessor of the premises in taking over the licence, rather than with Buddha on Hastings, and so it had no opportunity to insist that Buddha on Hastings advise of any pending or possible charges. There is no public register containing relevant details, or any other method of reliably obtaining information, that an incoming licensee can use to anticipate and mitigate against such a financial liability. Risk criterion fees are intended to deter the repetition of misconduct. Such deterrence is irrelevant where, as here, the licence has been transferred by the wrongdoer to an unrelated entity.
- The Commissioner in response argues that liabilities properly run with the licence, just as much as the benefits. The possibility of a risk criterion fee liability arising for a transferee is a business risk that the transferee must shoulder.
- Such fairness and policy considerations have some background relevance, but ultimately of course the question of liability or otherwise must turn on the interpretation of the words used in the legislation.
- Section 36CA(2)(b) of the Liquor Regulation operates to create liability for the risk criterion fee if ‘the licensee was convicted of an offence’. The section does not, in its terms, apply to Sandglass. Sandglass was not convicted of any offence.
- Does section 113(3) of the Liquor Act operate to impose liability on a new licensee when a previous licensee has been convicted? In part, the subsection says that on transfer of a licence, the transferee becomes the licensee. That might carry a general implication that the new licensee will be treated as the licensee for all purposes, including being liable for any burden that may attach to the licence because of the conduct of a previous licensee. However, given the provisions discussed below, in my view a general implication of that nature must yield to the specific provisions about fees.
- Section 113(3) goes to say that the transferee is subject to the obligations imposed by the Act or the conditions of the licence on the holder. It is not suggested that the obligation to pay a fee is a condition of the licence. It is, though, an obligation imposed by the Act in that section 202(1) of the Act says that ‘the licence fee payable for a licence for a licence period is to be assessed in the way prescribed under a regulation’.
- Accordingly, the liability or otherwise for a fee is to be determined under the Liquor Regulation. Section 36CA(2)(b) creates liability for a risk criterion fee where the ‘licensee was convicted of an offence’. It could have been written differently, for example that it would apply when ‘the licensee or a former licensee was convicted’. An instance of an explicit reference to a ‘former licensee’, in a different context, can be found in section 137E of the Liquor Act.
- Legislation is to be interpreted in the way that will best achieve its purpose, and extrinsic material such as Explanatory Notes for regulations can be consulted to clear up ambiguity.Arguably there is ambiguity about whether ‘licensee’ in section 36CA(2)(b) includes a former licensee, so I have had regard to the Explanatory Notes for the Liquor and Other Legislation Amendment Regulation (No. 1) 2009 (Qld), which inserted the provision. The Notes do not expressly address the issue. There are some statements which might shed some light. The reference to the rationale for a risk-based licence fee regime being to ensure that licensees ‘appropriately contribute to the direct cost of industry regulation’could be seen as broadly supportive of the Commissioner’s case. Perhaps too could the observation that ‘compliance history fees … are applied on the basis of past compliance with the Liquor Act rather than anticipated business practices for the coming year’.
- Regulating the liquor industry and policing the conduct of licensees does, no doubt, cost the State a considerable amount of money. There is undoubtedly a legislative intent to recoup some, at least, of this cost from licensees.
- The main purposes of the Liquor Act are set out in section 3. They include, in summary, regulation of the industry in order to minimise harm from alcohol misuse and associated violence, minimising adverse effects on community amenity, and the provision of revenue for the State to enable the attainment of the main purposes of the Act and for other purposes of government. Certainly the last of those purposes would be fostered if the Commissioner’s argument were accepted, though of course a provision should not be given a strained interpretation simply to further a legislative purpose.
- Another consideration is that if liability does not run with the licence, there would be an incentive for a licensee to transfer the licence to an associated entity in order to avoid a risk criterion fee. On the other hand, a licence cannot be transferred unless the Commissioner exercises a discretion to approve the transfer.That requirement would enable the Commissioner to block a transfer suspected of having an avoidance motive.
- Notwithstanding the contextual factors that lend some support to the Commissioner’s argument, ultimately I consider that clear words would have been required to extend liability for the risk criterion fee to the situation where a former licensee, rather than the current licensee, has been convicted. Those clear words are not in section 36CA of the Liquor Regulation. Nor does section 113 of the Liquor Act contain clear words that might produce a different result.
- Accordingly, I find that Sandglass is not liable to pay the risk criterion fee.
- I will therefore set aside the decision of the Commissioner to reassess the licence fees. That will leave in place the original self-assessment by Sandglass, for the base fee only.
- Published Case Name:
Sandglass Pty. Ltd. trading as Café 63 Noosa v Commissioner for Liquor and Gaming
- Shortened Case Name:
Sandglass Pty. Ltd. trading as Café 63 Noosa v Commissioner for Liquor and Gaming
 QCAT 3
24 Jan 2019