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BOA Capital Pty Ltd v Commissioner for Liquor and Gaming[2022] QCAT 42

BOA Capital Pty Ltd v Commissioner for Liquor and Gaming[2022] QCAT 42

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

BOA capital Pty Ltd v Commissioner for Liquor and Gaming & Anor [2022] QCAT 42

PARTIES:

BOA CAPITAL PTY LTD

(applicant)

V

COMMISSIONER FOR LIQUOR AND GAMING

(first respondent)

AND

THE GROSVENOR THE VALLEY PTY LTD

(second respondent)

APPLICATION NO/S:

GAR083-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 January 2022

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. The applicant’s application for miscellaneous matters (production of documents) filed 7 June 2021 is dismissed. 
  2. The application is listed for a Directions Hearing at a time and on a date to be fixed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PRODUCTION OF DOCUMENTS – OTHER MATTERS – whether to issue a notice to produce documents – whether documents are relevant – where documents are commercially sensitive

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 33, s 38, s 62, s 95

Liquor Act 1992 (Qld), s 21, s 30, s 33, s 34, s 103O, s 103Q, s 105B, s 107D, s 107E, s 118

Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers appointed) v Woolridge [2013] VSC 154

The Club of Mt Isa Pty Ltd v The Chief Executor, Liquor Licensing Division Department of Tourism, Fair Trading and Wine Industry Development [2006] CCT LR001-6

Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892

Langan & Langan [2013] FCCA 258

Pinnacle Sales & Management Pty Ltd & Ors v Lisa Douglas [2019] QCATA 52

Rae v Qantas Airways Limited [2021] QCAT 376

APPEARANCES &
REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this decision about?

  1. [1]
    On 29 January 2020 the Commissioner for Liquor and Gaming (the “OLGR”) granted an adult entertainment permit (“AEP”) to The Grosvenor The Valley Pty Ltd (“the Grosvenor”) for premises at 206 Wickham Street, Fortitude Valley (“the decision”).   BOA Capital Pty Ltd owns adjoining premises from which the holder of another AEP, The Candy Club, is trading. During the statutory period of advertisement,[1] BOA Capital Pty Ltd objected[2] to the granting of the AEP to the Grosvenor and, consequently, received notice[3] of the decision once made.
  2. [2]
    The Tribunal is given jurisdiction to review a decision to grant a permit by section 21(1) of the Liquor Act 1992 (Qld) (“The Liquor Act”) and pursuant to section 30(1) of the Liquor Act, BOA Capital Pty Ltd lodged an application for review within twenty-eight days of being notified of the decision.[4]
  3. [3]
    The role of the Tribunal in such an application is to review the circumstances afresh and to produce the correct and preferable decision.[5]
  4. [4]
    The role of the OLGR as respondent is to assist the Tribunal in making that decision,[6] rather than to take an adversarial role or to defend the decision under review.
  5. [5]
    The Grosvenor is participating in the proceedings as second respondent as a party affected by or interested in its outcome.
  6. [6]
    On 7 June 2021, BOA Capital Pty Ltd filed an application for miscellaneous matters seeking production of documents.  These applications are typically decided upon the written submissions of the parties without those parties or their representatives appearing at a hearing,[7] known as decisions made “on the papers”.
  7. [7]
    The Tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the tribunal[8] and, satisfied that such an opportunity was given to the parties in this instance,[9] my decision on the application for miscellaneous matters follows.

What must be considered on an application to direct the production of documents?

  1. [8]
    Section 62(1) of the QCAT Act permits the Tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. 
  2. [9]
    Without limiting that power, the Tribunal may give a direction requiring a party to the proceeding to produce a document or another thing or to provide information to the Tribunal or to another party to the proceeding.[10]
  3. [10]
    The Tribunal must ensure that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.[11]  Additionally, in review proceedings, the decision-maker, being the OLGR in this instance, has a positive obligation to provide to the Tribunal “any document or thing in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the decision”.[12] 
  4. [11]
    The Tribunal can compel the decision-maker to produce documents under section 62(3) of the QCAT Act or by written notice given to the decision-maker under section 21(3) if the Tribunal considers there are additional documents or things in the decision-makers possession or control that may be relevant to the Tribunal’s review of the reviewable decision. This is entirely an exercise of discretion by the Tribunal, and the Tribunal may refuse to allow a party to a proceeding to call evidence on a matter, even if relevant, if the Tribunal considers there is already sufficient evidence about the matter before the Tribunal.[13]  
  5. [12]
    For a notice to produce to issue under section 62(3) of the QCAT Act, the document thing to be produced must be relevant to a proceeding and a lack of relevance is, of itself, grounds by which the Tribunal can decline issue the notice to produce.[14] 
  6. [13]
    Noting that the onus is on the party alleging relevance to prove it,[15] it nonetheless can be gleaned from the application and material filed in the proceedings.[16]
  7. [14]
    There must also be a legitimate forensic purpose for issuing the direction to produce.[17]  The production of documents cannot be compelled for the purpose of trawling through what was produced in the hope of generating lines of enquiry not otherwise available to support the case in question (or any other case for that matter), or, in other words, the production of documents cannot be used for a “fishing expedition”.[18]
  8. [15]
    The appropriate test to apply to ascertain legitimate forensic purpose is whether the documents sought will materially assist the applicants’ case.[19]
  9. [16]
    In summary, it is for BOA Capital Pty Ltd to satisfy the Tribunal that:
    1. (a)
      The OLGR has possession or control of the documents or things they are being asked to produce; and
    2. (b)
      the documents to be produced may – in the Tribunal’s opinion – be relevant to the decision to be made by the Tribunal in the review application.
  10. [17]
    The Tribunal may decline to exercise its discretion to compel production if documents, whilst, relevant, will not on balance, assist the Tribunal in hearing and determining the matter.   

The documents and things sought

  1. [18]
    On 14 April 2020 the OLGR filed a 537-page bundle of documents (“the Bundle”) with its Statement of Reasons, in accordance with section 21(1) of the QCAT Act.
  2. [19]
    The directions sought by the application for miscellaneous matters essentially seeks to address what the applicant says are shortfalls in or omissions from the contents of the Bundle supplied by the decision-maker. Namely, BOA Capital Pty Ltd says that the OLGR has not complied with its obligation under 21(2)(b) of the QCAT Act.
  3. [20]
    The application to produce is as follows:

BOA Capital Pty Ltd seeks an order that the Commissioner of Liquor and Gaming (the Commissioner) be directed to produce all relevant documents that were before it when it made the decision to approve the application for an adult entertainment permit.

Such documents are to include (but not be limited to) the following:

a. the ‘next email’ referred to in Lisa Cook’s email of 26 April 2019 and the documents proposed to be attached (page 11 of the Bundle of Documents filed in the commission on 14 April 2020 (the Bundle)).

b. “Brisbane City Council – Comment” referred to in Lisa Cook’s email of 26 April 2019 (page 11 of the Bundle).

c. Evidence of the “clarifications” referred to at page 108 of the Bundle. d. The primary source documents that support the conclusions arrived at in the “Issues Table” – commencing at page 113 of the Bundle.

e. The documents (including E-docs) specifically referred to in the “Issues Table” at pages 117-125 of the Bundle.

f. E-docs #1849922 and E-docs #1849929 referred to at page 394 of the Bundle.

  1. [21]
    At the outset, I note that:
    1. (a)
      The documents proposed to be attached to the “next email” on 26 April 2019” (page 11 of the Bundle) include:
      1. A Site Plan, which is disclosed at page 76 of the Bundle;
      2. An AEP Management Plan which is disclosed at pages 87 to 91 of the Bundle;
    2. (b)
      The “Brisbane City Council – Comment” document referred to in Lisa Cook’s email of 26 April 2019 (page 11 of the Bundle) is contained in pages 62-63 of the Bundle (the applicant conceded this); and
    3. (c)
      The material described as “E-docs #1849929” referred to at page 394 of the Bundle is contained in pages 407 to 411 of the Bundle (the applicant concedes this).
  2. [22]
    To the extent the application relates to those documents, I dismiss it on the grounds that a direction to produce is superfluous as the documents are already in the possession of all parties to the proceeding, including the Tribunal. 
  3. [23]
    It remains for me to determine whether to compel the production of the following (and, if so compelled, to whom and under what restrictions as to publication, if any):
    1. (a)
      all relevant documents that were before it when it made the decision to approve the application for an adult entertainment permit; 
    2. (b)
      the “next email” referred to in Lisa Cook’s email of 26 April 2019;
    3. (c)
      the Risk Assessed Management Plan (“RAMP”) attached to Ms Cook’s “next email”;
    4. (d)
      evidence of the “clarifications” referred to at page 108 of the Bundle;
    5. (e)
      the primary source documents that support the conclusions arrived at in the “Issues Table” – commencing at page 113 of the Bundle; and
    6. (f)
      the documents (including E-docs) specifically referred to in the “Issues Table” at pages 117-125 of the Bundle; and 
    7. (g)
      E-doc #1849922 referred to at page 394 of the Bundle.

What is relevant to the decision under review?

  1. [24]
    The relevance of a document or thing depends of course upon the issues in dispute in a particular review application. In the context of the present proceedings, the Tribunal’s review jurisdiction is impacted by any constraints imposed by the Liquor Act; including sections 33 and 34.
  2. [25]
    Section 33(1) restricts the Tribunal to hearing and deciding the review by reconsidering “the evidence before the commissioner when the decision was made” unless leave is granted under section 34 for the consideration of new evidence.
  3. [26]
    Part 4A, Division 6 of the Liquor Act addresses the requirements for the granting of AEPs.   Relevantly, they include (and among other things):
    1. (a)
      Only liquor licensees and permittees are eligible to be granted an AEP;[20]
    2. (b)
      The area in which the adult entertainment is to take place must be enclosed, but should not contain private areas for the use of patrons of the adult entertainment[21]; and
    3. (c)
      The local government must consent to the application.[22]
  4. [27]
    Sections 107D and 107 E of the Liquor Act contain suitability provisions (my emphasis added):

107D Restriction on grant of adult entertainment permit

(1) The commissioner may grant an application for an adult entertainment permit only if the commissioner is satisfied that—

(a) the applicant is a suitable person to provide adult entertainment in licensed premises (the relevant premises) or premises to which a community liquor permit or restricted liquor permit relates (also the relevant premises); and

(b) after considering that, if the application were granted, the combined total of licensed brothels and premises permitted to provide adult entertainment in the locality in which the relevant premises are situated would not substantially affect the character of the locality; and

Example of character of locality being substantially affected—

locality becoming a ‘red light district’.

(c) the proposed approved area for the entertainment conforms with the requirements of section 103Q; and

(d) the applicant has submitted a proposed management plan in the approved form that provides for any matters prescribed under a regulation.

(2) Without limiting subsection (1), the commissioner must have regard to any comments of the relevant local government or police district officer received under section 117(2)(a).

107E Suitability of applicant for adult entertainment permit

(1) In deciding whether an applicant for an adult entertainment permit is a suitable person to provide adult entertainment, the commissioner must consider all relevant matters including the following—

(a) the applicant’s reputation, having regard to character, honesty and integrity;

…

(f) whether the applicant’s business structure is sufficiently transparent to enable all associates of the applicant, whether individuals or bodies corporate, to be readily identified;

(g) whether the applicant has the ability to control the noise and behaviour of the number of persons that could reasonably be expected to be on and in the vicinity of the premises if the permit were granted...

  1. [28]
    Section 119(4) of the Liquor Act permits an objection to the granting of an AEP on the grounds that, if the application were granted, one or more of the following may happen:
    1. (a)
      undue annoyance, disturbance or inconvenience to persons who reside, work or do business in the locality concerned, or to persons in, or travelling to or from, an existing or proposed place of public worship, hospital, school, or other facility or place regularly frequented by children for cultural or recreational activities;
    2. (b)
      harm from alcohol abuse and misuse and associated violence;
    3. (c)
      an adverse effect on the health or safety of members of the public; or
    4. (d)
      an adverse effect on the amenity of the community.
  2. [29]
    The application for review filed on 2 March 2020 seeks a review of the decision (and ultimately, a fresh decision denying the Grosvenor an AEP) on the grounds that the OLGR in granting the AEP did not have proper regard to:
    1. (a)
      the impact on amenity of the community nor the substantial affect the character of the locality (a ‘red-light district’ might be created); and
    2. (b)
      the transparency of the business structure of the Grosvenor.
  3. [30]
    The documents and things sought must therefore be relevant to the Tribunal’s consideration of these issues and, on balance likely to assist the Tribunal in making its decision on the AEP for the application for miscellaneous matters to succeed.

What does the applicant say?

  1. [31]
    The applicant says, firstly that they are unable to be precise in identifying missing, relevant documents because they are not in possession of such and only the OLGR knows the true position.  They say this is an obvious disadvantage to the applicant in these proceedings and in this application for miscellaneous matters.
  2. [32]
    They also submit that the Tribunal may, on review, need to consider documents that the decision-maker had, but did not give consideration to, relying upon the decision in The Club of Mt Isa Pty Ltd v The Chief Executor, Liquor Licensing Division Department of Tourism, Fair Trading and Wine Industry Development[23] in which Member Spender said:

[41] … In standing in the shoes of the Chief Executive, I am entitled to have regard to the same material as she or any of her officers had regard to in processing this application. The fact that the Division’s database material about the license conditions of other hotels in Mt Isa was not contained in the file considered by the Chief Executive when making her decision, does not mean that such database material was not relevant. The Chief Executive certainly did not think it was relevant and the applicant did not think it was relevant, but the Tribunal is entitled to take a different view. Until it sees material which it knows exists on the Division’s database, and which it believes may be relevant, it cannot be satisfied that it is aware of all the relevant facts.

[42] The database material which I requested is not in my view “fresh evidence”. It is relevant evidence that existed in Departmental records of which the Division’s local Licensing Officer had knowledge when he made his recommendations in the application, and which was available to the Chief Executive at the time of making her decision. Any material contained in a database to which the Chief Executive and her advisers have unfettered access, and which may bear upon the matters in issues in an application, is also “before” the Chief Executive, in the sense the Chief Executive has access to that material at will. If the Chief Executive has material which has a bearing on an application within the Departmental database and chooses not to look at it, or inadvertently overlooks or ignores it, then such material should be included within the materials for a rehearing, as it is plainly “before” the Chief Executive in the relevant sense. The content of the database of the Division, in so far as it relates to the state of comparable liquor licences in the relevant area was a matter which was “before” the Chief Executive and was material to which the Chief Executive could properly have had regard in determining this application.

  1. [33]
    In other words, BOA Capital Pty Ltd suggests the Tribunal should have documents to hand in order to determine their relevance, rather than relying on relevance pre-determined by the decision-maker.
  2. [34]
    The OLGR distinguishes the Club of Mt Isa decision in a number of respects:
    1. (a)
      It was a decision of the Commercial and Consumer Tribunal that involved consideration of further materials being added to the Appeal Book. On an application for review of a decision to refuse to vary license conditions the Tribunal, of its own volition, decided that data about license conditions of other hotels in Mt Isa would be of assistance and ultimately determined that the issue of ensuring fairness between licensees of hotels in Mt Isa was not a factor that needed to be taken into consideration and further materials were not required to be included in the Appeal Book.
    2. (b)
      The Commercial and Consumer Tribunal Act 2003 (“CCT Act”) governed the conduct of that proceeding and did not contain provisions similar to section 21 of the QCAT Act empowering the Tribunal to require the decision-maker to provide information.
    3. (c)
      The remarks of Member Spender at [42] in Club of Mt Isa decision which suggest all departmental records in a database, and which may bear upon the matters in issue in an application, are “before” the [decision maker], should be confined to an interpretation of the CCT Act, which lacked the express power to require provision of further documents if the Tribunal considers it relevant to the review proceeding contained within the QCAT Act.

Evidence of the “clarifications” referred to at page 108 of the Bundle.

  1. [35]
    At page 108 of the Bundle, the OLGR discusses the transparency of the Grosvenor’s business structure is considered with the outcome that there are “No material concerns”.  This followed an assessment that was undertaken by the Commissioner’s delegate, which initially noted concerns about the structure as follows (emphasis added):[24]

It is noted that information received initially was not detailed and complete in providing figure to project cost and SOF. Initially the applicant disclosed it was using its own funds. However the funds shown were not sufficient for the total cost and majority of the SOF appeared to be from drink agreement rebates. The information provided by the applicant was also not considered sufficient in reconciling the project cost with its funding. This lead to some concern that there were potentially unknown associates which may have been involved in providing funds. A number of clarifications were made in this regard which caused delays to the progress of the investigation. The applicant provided additional information of the project costs and the SOF was provided which showed a more detailed breakdown of where the applicant was sourcing its funding. It was noted additional SOF including finance arrangements have been obtained by the applicant, further to what was provided initially.

The issues identified have been addressed and worked through in terms of the applicant’s financial arrangements and SOF. As mentioned, some concern was held in determining the applicant’s financial structure from the difficulty experienced in obtaining full and complete information with respect to the applicant’s arrangements. From several clarifications made with the applicant, information has now been received for the SOF that are considered satisfactory. The SOF did not identify any other associates for further investigation. 

  1. [36]
    The applicant says that although the commissioner’s delegate was ultimately persuaded that there was no issue with the business structure, the Tribunal might form a different view, but the Tribunal cannot properly consider the position without the additional documents.

“Issues Table” – commencing at page 113, and the documents (including E-docs) specifically referred to in the “Issues Table” at pages 117 to 125 of the Bundle

  1. [37]
    The applicant says that throughout the “Issues Table” at pages 113 to 131 of the Bundle, there are references to source documents (for example, “written correspondence received 2 July 2019”[25] and “written correspondence received 22 August 2019”[26]) that do not appear in the Bundle.   They say the relevance of such documents is highlighted by what is said in the summary that appears on page 125:

Some concern was held from the lack of complete information and inconsistent details in demonstrating sufficient evidence for source of funds.

  1. [38]
    On the same page it is said:

SOF is now considered satisfactory in terms of transparency of the structure and funding arrangements…

  1. [39]
    On that basis, the applicant says the Commissioner’s delegate was initially concerned with respect to suitability and that those concerns were ultimately addressed to the delegate’s satisfaction. But it is the Tribunal’s role to confirm whether the ultimate outcome was the “correct or preferable” one, and the Tribunal cannot perform its function unless it has access to the primary documents, so as to be similarly satisfied (or dissatisfied as the case may be).

E-doc #1849922 referred to at page 394 of the Bundle.

  1. [40]
    The applicant says E-doc #1849922 is referred to in the Bundle as a recording (which, is a ‘document or thing’), and the reference to it in the “Objection Conference Report” that forms part of the Bundle, confirms its relevance.

What do the respondents say?

  1. [41]
    Addressing the two concerns expressed by BOA Capital Pty Ltd in seeking the review, the OLGR says that the following documents within the Bundle address those two concerns:
    1. (a)
      A report on the impact on the character and amenity of the community (at pages 462 to 466); and
    2. (b)
      The Probity Report (at pages 100 to 131 of the Bundle) including consideration of the Grosvenor’s structure specifically at page 109.
  2. [42]
    The OLGR argues that:
    1. (a)
      Further disclosure of documents ought not be compelled to facilitate a fishing exercise or to locate documents which may be possibly relevant, particularly in circumstances where BOA Capital Pty Ltd is a commercial competitor of the Grosvenor.
    2. (b)
      With respect to the “next email”, it made no submissions.
    3. (c)
      With respect to the RAMP, being an attachment to the “next email” of 26 April 2019, this was submitted to the OLGR by the Grosvenor for the purpose of considering its liquor licence and that it accompanied their AEP documents does not render it relevant to reviewing a decision to grant an AEP.   The Grosvenor also submits that the lodgement of a RAMP by an applicant for a liquor licence, and the approval of that RAMP by the Commissioner, is a completely different statutory "decision" under the Liquor Act and the fat that it was received by the OLGR in accordance with section 105A of the Liquor Act, are facts that are already evidenced by the material contained in Bundle.
    4. (d)
      With respect to the primary source documents, inquiries and correspondence relating to the “Issues List”:
      1. The contents of these documents have been discussed in the 31 page Probity Report filed as part of the Bundle (at pages 100 to 131 of the Bundle);
      2. The ‘source documents’ requested by the applicant comprise bankruptcy and credit history checks, trust deeds and supplier agreements, business ledgers, bank statements, character and police checks, including criminal histories of the directors and executive officers of the Grosvenor, which is sensitive personal information, including personal financial information, as well as information concerning the business activities and plans of the Grosvenor.
      3. As the applicant’s main concern is corporate transparency, there is no reason why the Probity Report, which contains uncontroversial findings such as identity of the parties to a trust deed, shareholders of an associate companies and identity of creditors, is insufficient to assess who is conducting the business holding the AEP.
      4. The Probity Report names each person that has been identified as being part of the corporate structure of the business of the Grosvenor and the investigations taken into each person.
      5. Given the highly sensitive confidential nature of information obtained during a probity vetting process conducted by OLGR, before consideration is given to releasing such information to a competitor (in whole or redacted form) and non-publication orders that would be associated with the release of such information, the relevance of the material to the issue the Tribunal is to decide, should be clear.
    5. (e)
      The Grosvenor add that:
      1. Although the application for miscellaneous matters “can best be described as imprecise”, it appears directed to seeking the production of documents or things that:
        1. may have come into existence in the course of the probity/suitability investigation undertaken by departmental officers within OLGR's Probity Unit; and/or
        2. otherwise have been referred to by those officers in the course of preparing the report which appears at pages 100 to 131 of the Bundle.
      2. Given the general legislative framework which governs the issue of an AEP under the Liquor Act, the OLGR Probity Report was prepared having regard to sections 107D and 107E of the Liquor Act.
      3. The OLGR may delegate certain investigative powers under the Liquor Act and the Tribunal on review must be cognisant of the practical realities of administrative decision making and "practical administrative necessity", including the delegation of certain ancillary steps, stages or functions to appropriately qualified departmental officers.
      4. The OLGR Probity Report is an extensive document and contains detailed information as to, inter alia, the investigations undertaken by the OLGR Probity Unit, the rationale for same, the findings following those investigations and the Probity Unit's ultimate recommendations.
      5. The applicant does not suggest that the Probity Report does not adequately and properly address those matters which the OLGR must consider pursuant to section 107E of the Liquor Act.
      6. Pursuant to section 33(1)(a) of the Liquor Act, the Tribunal must "hear and decide the review of decision by way of a reconsideration of the evidence before the commissioner when the decision was made".
      7. The evidence before the Commissioner when the decision was made, was the OLGR Probity Report (and the other material included in the Bundle) as distinct from the additional "documents or things" requested by the applicant.
      8. For a "document or thing" to fall within the scope of section 21(2)(b), that "document or thing" must possess three (3) inherent qualities:
        1. it must actually be a "document or thing";
        2. it must be "in the decision-maker’s possession or control";
        3. it must have a quality of relevance in that "it may be relevant to the tribunal’s review of the decision".
      9. It follows that any "documents or things" that fall outside of the Bundle:
        1. cannot be relevant to the review of the decision because they were not "evidence before the Commissioner when the decision was made"; and
        2. are not required to be produced pursuant to section 21(2)(b) of the QCAT Act.
      10. Further, the review is not of the investigations undertaken by the OLGR Probity Unit which culminated in the production of the OLGR Probity Report, including any investigative discretions and the like which were exercised in the course of that investigation.
      11. In circumstances where:
        1. the only grounds for objection open to the applicant are those limited grounds in section 119(4) of the Liquor Act; and
        2. such grounds do not extend to "suitability matters" in respect of the Grosvenro under sections 107D and 107E of the Liquor Act or otherwise, the applicant is not competent to raise, make submission on and/or be heard in respect of those matters either at first instance or before the Tribunal when exercising its review jurisdiction conferred by the Liquor Act.
    6. (f)
      In relation to "Edocs#184922" (the Objections Conference Recording), it can be inferred from page 3 of the "Objection Conference Report" dated 11 July 2019 (page 394 of the BORD) that this recording references matters which are beyond the scope of those grounds which the relevant objectors were lawfully competent to raise pursuant to section 119(4) of the Liquor Act, and that are already reflected in their written objections.  Therefore, it is not relevant and need not be disclosed.  The Grosvenor add that, as a matter of law:
      1. such matters could not lawfully have been taken into account by the OLGR at first instance pursuant to section 121(b) of the Liquor Act;
      2. that the recording is therefore also irrelevant to the Tribunal’s review of the first instance decision; and
      3. if the OLGR (at first instance) or the Tribunal (on review) did take such matters into consideration, they risked/risk falling into error by taking into account irrelevant considerations.

Should the OLGR be compelled to produce the documents requested?

Is the OLGR in possession of the things they are being asked to produce?

  1. [43]
    To the extent the Bundle refers to documents not contained within it, it certainly seems to be the case, or can be inferred that the OLGR may well hold the documents sought by BOA Capital Pty Ltd.  This point has not been the subject of strenuous submissions and the current application does not turn on it.

Are the documents to be produced are relevant to the application before the Tribunal?

  1. [44]
    The applicant’s concluding submission on the application is as follows (my emphasis added):

The Bundle as provided to the Tribunal, does not contain all of the documents that were before the Commissioner. It is not for the Commissioner to make the call as to what might ultimately be the determinative documents. That is for the Tribunal to decide. It needs all of the documents to be able to so. If there are concerns as to confidentiality, then appropriate non-publication orders can be made.

  1. [45]
    With respect, decision-maker’s obligation under section 21(3) is not to produce “all of the documents that were before the Commissioner” but is rather to produce “any document or thing in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the decision”.   Contrary to the suggestion that “it is not for the Commissioner to make the call as to what might ultimately be the determinative documents”, the express wording of section 21(2)(b) is that the decision-maker must decide for itself what is relevant before producing it to the Tribunal.   If the Tribunal decides other documents or things may be relevant, it can compel production under 21(3), but the first instance obligation to identify and produce relevant documents and things is the decision-maker’s to perform.
  2. [46]
    The question is whether the applicant has satisfied the Tribunal that additional documents or things held by the OLGR may be relevant to the decision under review.  For the reasons given within, and below, I am not so satisfied.

All relevant documents that were before the OLGR when it made the decision

  1. [47]
    I decline to direct the decision-maker to perform an action they are already under a statutory obligation to perform by making a broad direction to produce unspecified documents.  Such a direction is unnecessary as the OLGR is already compelled to produce such documents and they have made statements that they have complied with that obligation.
  2. [48]
    Even if I was satisfied it was appropriate to make a direction, which I am not, then the terms of the direction sought are so broad and vague as to be unable to be performed.  They require an exercise of discretion by the decision-maker as to relevance, which the decision-maker has already exercised such that the direction itself would be futile.

The ‘next email’ referred to in Lisa Cook’s email of 26 April 2019

  1. [49]
    It is common practice when sending a bundle of scanned documents by email to separate them across two or more emails due to the size of the attachments exceeding sending or mailbox storage capabilities.  The context of the 26 April 2019 suggests this has been the case and that the “next email” merely contained attachments referred to in the 26 April 2019 email.  It would be unlikely in that event that the “next email” itself (as opposed to its attachments) contained content relevant to the decision under review. 
  2. [50]
    Frankly, I am not convinced that the cover email of 26 April 2019 that was produced is relevant because it does not contain relevant information or make submissions; it simply lists a number of attachments.  The attachments are relevant, and the date of their submission to the OLGR is noted on the documents themselves, but it is difficult to see how the content of the cover email itself is relevant to the factors to be considered in making the decision under review. 
  3. [51]
    It is therefore unlikely that  the “next email” is relevant or of assistance to the Tribunal in these proceedings.  Further, the applicant has put forward no argument as to the relevance of the “next email”, instead relying on its very existence to establish the possibility of relevance, to be determined by the Tribunal.   With respect, that does not discharge the applicant’s onus with respect to relevance.
  4. [52]
    I decline to direct production of the “next email” following Ms Cook’s email of 26 April 2019 on the basis that it is unlikely to be relevant or of assistance to the Tribunal in these proceedings. I find that the decision-maker was under no obligation to produce it under section 21(3) of the QCAT Act.
  5. [53]
    As a separate matter, having been omitted from the Bundle, I am not satisfied that the “next email” was before the decision-maker when the decision was made for the purpose of section 33(1) of the Liquor Act which further suggests it is, on balance, irrelevant to the decision under review. 

The Risk Assessed Management Plan (“RAMP”)

  1. [54]
    BOA Capital Pty Ltd has not established the relevance of the RAMP to the decision under review (as opposed to any decision to be made with respect to liquor licensing).  
  2. [55]
    I decline to direct production of the RAMP on the basis that it is not relevant and would not assist the Tribunal in these proceedings. I find that the decision-maker was under no obligation to produce it under section 21(3) of the QCAT Act.
  3. [56]
    As a separate matter, having been omitted from the Bundle, I am not satisfied that the RAMP was before the decision-maker when the AEP decision was made for the purpose of section 33(1) of the Liquor Act which further suggests it is, on balance, irrelevant to the decision under review. 

Evidence of the “clarifications” referred to at page 108 of the Bundle; Primary source documents supporting the conclusions arrived at in the “Issues Table”; Documents referred to in the “Issues Table” at pages 117-125 of the Bundle 

  1. [57]
    In circumstances where:
    1. (a)
      the decision-maker delegated investigative powers to the Probity Unit to prepare the Probity Report; and
    2. (b)
      the decision as to whether satisfactory disclosure of information and explanation of sources of finance was made by those delegates;
    3. (c)
      the investigations decisions made, and conclusions drawn by the delegates are not the decision under the review (such that the Tribunal will be informed by the delegated decisions to the same extent and by reviewing the same documents as the decision-maker did);
    4. (d)
      the primary source documents do not form part of the Bundle,

I am not satisfied that the applicant has satisfied the Tribunal that the documents referred to in this part of the application for miscellaneous matters were before the decision-maker when the decision was made for the purpose of section 33(1) of the Liquor Act and, therefore, they are, on balance, irrelevant to the decision under review and I decline to compel their production. 

Edocs#1849922

  1. [58]
    The Objection Conference Report is set out on pages 392 to 395 of the Bundle and the reference to Edocs#1849922 is contained within the following paragraph (page 394):

Additional Comments

Several topics were attempted to be discussed at the conference that did not fall within the grounds specified under Section 119(4) of the Liquor Act 1992.  These topics were not allowed to be discussed.  As a result of this, an objector did want to make it known that he felt it was unfair that his concerns weren’t heard.  Please see Edocs#1849922 for the recording.

  1. [59]
    These proceedings are not a review of the decision made in the Objection Conference to refuse to hear certain of the applicant’s concerns (that had already been expressed in writing in any event).  It is difficult to see how a recording of the Objection Meeting wherein a discussion of additional concerns was refused is relevant or of assistance in these proceedings which are intended to make a fresh decision on the merits.    
  2. [60]
    I decline to direct production of Edocs#1849922 on the basis that it is not relevant and would not assist the Tribunal in these proceedings. I therefore also find that the decision-maker was under no obligation to produce it under section 21(3) of the QCAT Act.

Will the documents produced, on balance, assist the Tribunal in hearing and determining the matter?   

  1. [61]
    The applicant has not convinced the Tribunal that the documents sought may be relevant to the decision under review.  The application for miscellaneous matters (production of documents and things) is dismissed for those reasons.  

Footnotes

[1]  Section 118(1)(e) of the Liquor Act 1992 (Qld) (“Liquor Act”).

[2]  Section 119, ibid.

[3]  By a letter dated 4 February 2020.

[4]  Complying with section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

[5]  Section 20 of the QCAT Act.

[6]  Section 21, ibid.

[7]  Section 32(2), ibid.

[8]  Section 95(1), ibid.

[9]  Directions of Member Browne made 13 September 2021.

[10]  Section 62(3) of the QCAT Act.

[11] Pinnacle Sales & Management Pty Ltd & Ors v Lisa Douglas [2019] QCATA 52 at paragraph [14].

[12]  Section 21(2)(b) of the QCAT Act.

[13]  Section 95(2), of the QCAT Act.

[14] Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892 at [49]. 

[15] Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892 at [58].

[16] Langan & Langan [2013] FCCA 258.

[17] Rae v Qantas Airways Limited [2021] QCAT 376 at paragraph [42].

[18] Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892 at [50].

[19] Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers appointed) v Woolridge [2013] VSC 154 at [99].

[20]  Section 103O of the Liquor Act.

[21]  Section 103Q, ibid.

[22]  Section 105B, ibid.

[23]  [2006] CCT LR001-6.

[24]  Bundle: p 108.

[25]   Bundle: p 117.

[26]  Bundle: p 119.

Close

Editorial Notes

  • Published Case Name:

    BOA Capital Pty Ltd v Commissioner for Liquor and Gaming & Anor

  • Shortened Case Name:

    BOA Capital Pty Ltd v Commissioner for Liquor and Gaming

  • MNC:

    [2022] QCAT 42

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    25 Jan 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers appointed) v Woolridge [2013] VSC 154
2 citations
Jump To
Cite 1 - [2013] VSC 154
Cite 2 - [2013] VSC 154
Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892
4 citations
Jump To
Cite 1 - [2000] FamCA 892
Cite 2 - [2000] FamCA 892
Cite 3 - [2000] FamCA 892
Cite 4 - [2000] FamCA 892
Langan and Langan [2013] FCCA 258
2 citations
Jump To
Cite 1 - [2013] FCCA 258
Cite 2 - [2013] FCCA 258
Pinnacle Sales & Management Pty Ltd v Douglas [2019] QCATA 52
2 citations
Jump To
Cite 1 - [2019] QCATA 52
Cite 2 - [2019] QCATA 52
Rae v Qantas Airways Limited [2021] QCAT 376
2 citations
Jump To
Cite 1 - [2021] QCAT 376
Cite 2 - [2021] QCAT 376
The Club of Mt Isa Pty Ltd v The Chief Executor, Liquor Licensing Division Department of Tourism, Fair Trading and Wine Industry Development [2006] CCT LR 1-6
2 citations
Jump To
Cite 1 - [2006] CCT LR 1-6
Cite 2 - [2006] CCT LR 1-6

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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