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- Unreported Judgment
Meissner v Commissioner for Liquor and Gaming QCAT 338
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Meissner v Commissioner for Liquor and Gaming & Anor  QCAT 338
Commissioner for Liquor and Gaming
Crowe and Neville Pty Ltd trading as Rollingstone Beach Caravan Resort
General administrative review matters
6 November 2019
4 November 2019
The application for miscellaneous matters (application for a direction that the review proceeding not progress further until a Planning and Environment Court proceeding has been completed, and for directions relating to proposed new evidence) filed by Donald Meissner on 23 September 2019 is refused.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where related proceeding in Planning and Environment Court – whether review proceeding should await outcome of Court proceeding
GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – LICENSING TRIBUNALS GENERALLY – REVIEWS, APPEALS AND CASES STATED – GENERALLY – where objector seeks to lead new evidence – whether tribunal can receive evidence that came into existence after reviewable decision made
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b)
Liquor Act 1992 (Qld), s 33, s 34
Butler & Ors v Office of Liquor and Gaming Regulation GBBC Pty Ltd  QCAT 226
Cameron v Noosa Shire Council  QCA 486
Cooper & Ors v Commissioner for Liquor and Gaming & Anor  QCAT 627
The AM Darling Unit Trust t/as AM Darling Pty Ltd v Commissioner for Liquor and Gaming Regulation  QCAT 394
Wilson Ryan Grose Lawyers
D Robinson for Commissioner for Liquor and Gaming; Macrossan and Amiet Solicitors for Crowe and Neville Pty Ltd trading as Rollingstone Beach Caravan Resort
REASONS FOR DECISION
- Mr Meissner lives near the Rollingstone Beach Caravan Resort. That resort is owned by Crowe and Neville Pty Ltd. The company has a liquor licence for a bar at the resort. It has musicians performing at the bar at times, and it hosts some music festivals.
- On 9 January 2019 the Commissioner for Liquor and Gaming varied the licence conditions. The effect of the variation was to remove two of the noise conditions.
- Mr Meissner, who had objected to Crowe and Neville Pty Ltd’s application to vary the licence, has applied to the Tribunal for a review of the Commissioner’s decision. In his application to review a decision, he contends that certain conditions should be added to the licence in order to manage noise output.
- The matter has had a compulsory conference but has not yet proceeded to hearing.
- The present decision is an interlocutory one, relating to an application for miscellaneous matters filed by Mr Meissner on 23 September 2019. That application seeks directions that:
- (a)preliminary questions of law should be determined before the matter proceeds to hearing;
- (b)Mr Meissner should be given leave to present new evidence; and
- (c)copies of Mr Meissner’s proposed new evidence must be delivered to the other parties within 20 business days of such leave being granted.
- The parties’ lawyers made oral submissions on the application at a directions hearing on 4 November 2019.
Whether preliminary questions of law should be decided before the matter proceeds to hearing
- At the directions hearing, Mr Morton (of Wilson Ryan Grose) for Mr Meissner clarified that what is sought is a direction that the review proceeding in the Tribunal should not progress further until certain questions of law have been decided by the Planning and Environment Court.
- On 18 September 2019 Mr Meissner filed an application in that Court seeking declarations and orders about the use of the resort site. The respondents to the Court application are Townsville City Council and Crowe and Neville Pty Ltd. In the application, Mr Meissner contends that the present use of the site is unlawful, on the basis that approvals granted by the Council are invalid. Amongst other things, Mr Meissner argues that a 15 metre wide buffer zone described in an approval application as being in a particular lot is actually located in a different lot which is not owned by Crowe and Neville Pty Ltd.
- The proceeding in the Planning and Environment Court is being contested. Mr Morton does not anticipate a hearing sooner than the early part of next year. Mr Naylor (of Macrossan and Amiet Solicitors) for Crowe and Neville Pty Ltd submits that it is highly unlikely that there would be a hearing until the middle of 2020, and then the decision could follow sometime after that.
- Mr Morton submits that the decision of the Planning and Environment Court will be relevant for the Tribunal in reaching the correct and preferable decision in the review. This is because under section 121 of the Liquor Act 1992 (Qld) (‘Liquor Act’), the Commissioner (and in turn the Tribunal on review) must have regard to matters which include any relevant conditions imposed by a local government on a development approval for the premises, comments from the local government about the application for variation of the licence, and the impact on the amenity of the community. Mr Morton notes that the Council, in its comments to the Commissioner about the licence variation application, said that ‘the existing lawful use rights support the operation as licensed premises’.
- Mr Morton also drew my attention to the observations of the Court of Appeal about the exclusive jurisdiction of the Planning and Environment Court to make declarations in respect of various planning matters. I note that this exclusivity was under the since-repealed Local Government (Planning and Environment) Act 1990 (Qld). Even if there is a similar provision in the current legislative scheme, in my view it would not prevent the Tribunal from proceeding with a review. Even though the Tribunal would need to determine what relevant conditions, if any, were imposed on any relevant development approval, the Tribunal’s role would not be to make a declaration.
- Nonetheless, the Planning and Environment Court is the specialist Court for planning matters. There could be circumstances in which it would be appropriate for the Tribunal to postpone a review until the Court clarified a matter such as whether a development condition is valid.
- The respondents oppose the proposal to put the review proceeding on hold. Mr Naylor, for Crowe and Neville Pty Ltd, points to the considerable delay that would probably be caused in the review proceeding. He also submits that not all of the approvals relevant to the site are being challenged in the Court proceeding; the Tribunal is required under section 33(1) of the Liquor Act to decide the review in accordance with the evidence that was before the Commissioner and the law that applied when the Commissioner’s decision was made; and the decision of the Court will not have any particular impact on the review. Mr Robinson, for the Commissioner, also points to the delay. He submits that if some change to the licence conditions becomes necessary as the result of the Court proceeding, this can be achieved by the Commissioner instigating a variation to the licence under sections 111 and 112 of the Liquor Act.
- In my view, it is possible that the outcome of the Court proceeding could affect the question of what licence conditions are appropriate. Conceivably the outcome could even be there is no valid planning approval for a bar. The Court decision could be relevant to the review notwithstanding the limitation in section 33(1)(b) of the Liquor Act that the review must be decided in accordance with the law that applied when the Commissioner made the decision, because presumably the Court’s declarations would clarify the law that operated at that time (whether or not the Commissioner understood the law correctly).
- On the other hand, the focus of the dispute is amenity: whether the licence variation allows an excessive noise impact on nearby residents. The planning matters are of background relevance only. If the outcome of the Court proceeding has an effect on what conditions are appropriate, or even results in a declaration that the use of the premises for a bar is unlawful, there are mechanisms in the Liquor Act to address such a change of circumstances. There could be a variation of the licence, as Mr Robinson has submitted. Alternatively, presumably there could be a cancellation of the licence if the premises could no longer be considered ‘suitable’ for the purposes of section 107(4) of the Liquor Act.
- The Tribunal must be mindful of the need to deal with matters quickly: section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The course and duration of litigation is unpredictable. On present indications, the proceeding in the Planning and Environment Court is unlikely to be concluded in the near future.
- Overall, while I see some merit in the proposal to put the review proceeding on hold, on balance I consider that the better course is to require that the review proceed to hearing at the next available date.
Proposal for new evidence
- Mr Morton, for Mr Meissner, explained at the directions hearing the nature of the additional evidence that Mr Meissner wishes to lead. Firstly, he wishes to lead evidence from an acoustics engineer, Mr Paul King. Secondly, he wishes to lead evidence of sound recordings that he (Mr Meissner) has made. Some of these recordings were made before the Commissioner’s decision to vary the licence, and some after.
- Despite a direction made by the Tribunal on 26 August 2019 to file a copy of the proposed new evidence along with the application for leave to present new evidence, Mr Meissner has not filed a copy of the proposed new evidence. This makes it somewhat harder to evaluate the application.
- Mr Morton informed me at the directions hearing on 4 November 2019 that he does not at this point have a report from Mr King. I take this to mean that Mr King has not yet prepared a report.
- Mr Meissner must have had some advice from Mr King before the licence was varied, because in his objection dated 1 November 2018 he wrote:
… I am advised by Paul King Acoustic Engineer, that if the caravan park were operating in compliance with their 75 dBC at 3 metre noise limit at the stage area it would be unlikely that I would be able to hear the music at my dwelling.
- I note that there is a report by an acoustics engineer, Mr Craig O'Sullivan, in the bundle of documents filed by the Commissioner in the review proceeding. That report was commissioned by Crowe and Neville Pty Ltd, and lodged with the Commissioner as part of its application for the licence variation.
- Sections 33 and 34 of the Liquor Act limit the introduction of new evidence:
33Tribunal to decide review on evidence before the commissioner
- In a proceeding for a review of a decision of the commissioner by the tribunal, the tribunal must—
- hear and decide the review of the decision by way of a reconsideration of the evidence before the commissioner when the decision was made; …
34Tribunal may give leave for review to be decided on new evidence in particular circumstances
- Despitesection33, the tribunal may grant a party to a proceeding for a review of a decision of the commissioner (thedecision) 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.
- In this section—
new evidencemeans evidence that was not before the commissioner when the decision was made.
- Mr Morton submits that a narrow reading of section 34 should be avoided. The topic of excessive noise was clearly raised in the objection; Mr Meissner contended there had been past non-compliance; and reference was made in the objection to Mr King’s opinion. Failure by the Commissioner to look into these matters should not preclude Mr Meissner from placing appropriate evidence about them before the Tribunal, Mr Morton submits.
- The respondents oppose the application to introduce additional evidence: firstly, some of the evidence must have been known to Mr Meissner before the Commissioner’s decision was made, and, secondly, some of it came into existence only later. Mr Robinson, for the Commissioner, submits that section 34 does not permit the Tribunal to grant leave to introduce evidence that came into existence after the Commissioner’s decision was made. He drew my attention to Butler and Ors v Office of Liquor and Gaming Regulation GBBC Pty Ltd (‘Butler’), in which the Tribunal took the view that leave can be given under section 34 only in respect of ‘evidence that may have been available at the time the decision was made but not considered by the Commissioner’.
- A different view, however, was taken by the Tribunal in Cooper & Ors v Commissioner for Liquor and Gaming and Anor (‘Cooper’):
I am not satisfied that the terms of s 34 necessarily preclude the granting of leave to permit the consideration by the Tribunal of evidence, which came into existence after the decision was made. The definition of new evidence combined with the terms of s 34(1) do not clearly require such a limitation to be imposed.
- Later, however, in The AM Darling Unit Trust t/as AM Darling Pty Ltd v Commissioner for Liquor and Gaming Regulation, the Tribunal preferred the view taken in Butler. The Tribunal commented that section 34(1) does not refer to evidence that comes into existence after the decision was made, and ‘if that interpretation had been intended it would have been easy to make that intention clear’.
- My own reading of section 34 is that it enables leave to be granted only for evidence that existed at the time the Commissioner’s decision was made. Section 34(1)(a) is predicated on the existence of the evidence at the time of the Commissioner’s decision. It contemplates that such evidence may be introduced, by leave, provided that the party in question did not know of its existence, or could not reasonably be expected to have known of its existence. The provision cannot sensibly refer to evidence that was non-existent at the time of the Commissioner’s decision.
- I respectfully disagree with the view taken in Cooper.
- Accordingly, any report that might now be prepared by Mr King would not be evidence for which leave could be granted under section 34. Similarly, evidence of sound-recordings made by Mr Meissner after the Commissioner’s decision cannot be introduced.
- Sound-recordings made by Mr Meissner before the Commissioner’s decision were known to Mr Meissner before that decision was made. If Mr Meissner did not place that specific evidence before the Commissioner, he cannot now place it before the Tribunal.
- Therefore, leave cannot be given for Mr Meissner to present the proposed new evidence.
- Whether the Commissioner should have done more to investigate Mr Meissner’s concerns before making the decision is immaterial. That is not to say that a failure by the Commissioner to make adequate enquiries may not be relevant in the course of the review proceeding. Conceivably it could give rise to a decision by the Tribunal to set aside the Commissioner’s decision and return the matter to the Commissioner for reconsideration in accordance with directions. However, as I have not had the benefit of submissions on that topic, I merely mention it as an apparent possibility.
- For the reasons given above, I have decided that the directions sought in the application for miscellaneous matters filed on 23 September 2019 are not appropriate. The application for miscellaneous matters is refused. The review proceeding will be listed for hearing in Townsville on a date to be advised.
 Bundle of documents filed by Commissioner for Liquor and Gaming, p. 53.
 Cameron v Noosa Shire Council  QCA 486, 12.
 Bundle of documents filed by Commissioner for Liquor and Gaming, p. 69.
  QCAT 226.
 Ibid, .
  QCAT 627, .
  QCAT 394.
 Ibid, .
 QCAT Act, s 24(1)(c).
- Published Case Name:
Donald Meissner v Commissioner for Liquor and Gaming and Crowe and Neville Pty Ltd trading as Rollingstone Beach Caravan Resort
- Shortened Case Name:
Meissner v Commissioner for Liquor and Gaming
 QCAT 338
06 Nov 2019