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  4. Lillywhite v Chief Executive, Liquor Licensing Division, Dept of Tourism Fair Trading & Wine Industry Development - [2007] QDC 240

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Lillywhite v Chief Executive, Liquor Licensing Division, Dept of Tourism Fair Trading & Wine Industry Development[2007] QDC 240

Lillywhite v Chief Executive, Liquor Licensing Division, Dept of Tourism Fair Trading & Wine Industry Development[2007] QDC 240

Lillywhite v Chief Executive, Liquor Licensing Division, Dept of Tourism Fair Trading & Wine Industry Development [2007] QDC 240

DISTRICT COURT OF QUEENSLAND

CITATION:

Lillywhite v Chief Executive, Liquor Licensing Division, Dept of Tourism Fair Trading & Wine Industry Development [2007] QDC 240

PARTIES:

REGINALD JOHN LILLYWHITE

Appellant

and

CHIEF EXECUTIVE, LIQUOR LICENSING DIVISION, DEPARTMENT OF TOURISM FAIR TRADING & WINE INDUSTRY DEVELOPMENT

Respondent

FILE NO:

Appeal No BD 913 of 2007

PROCEEDING:

Appeal from Commercial & Consumer Tribunal

DELIVERED ON:

11 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2007

JUDGE:

Judge Brabazon QC

ORDER:

Appeal dismissed

CATCHWORDS:

APPEALS – ADMINISTRATIVE LAW – Appeal against a decision of the Commercial and Consumer Tribunal – whether there was an error of law in the decision of the Tribunal – whether the conclusions of the Tribunal were proper inferences made from the known facts

Commercial and Consumer Tribunal Act 2003, ss 4, 100

Cases considered:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Buck v Bavone (1975-76) 135 CLR 110

Central West v Orange CC 128 LGERA 169

New South Wales v Buckland, NSW Court of Appeal, 31 March 2000

COUNSEL:

Mr M Amerena for the appellant

Mr S Horneman-Wren for the respondent

SOLICITORS:

McDonnells Law for the appellant

Crown Law for the respondent

The Issue

  1. [1]
    Mr Lillywhite holds licences to sell liquor at detached bottle shops in Townsville. Each is in a shopping centre, in a suburban area.
  1. [2]
    On 23 November 2006, the Executive Director of the Liquor Licensing Division (Mr Chris Watters) wrote to Mr Lillywhite:

“… I have decided to impose the following condition on all general licences in Townsville that currently have the authority to sell takeaway liquor prior to 10.00 am.

The sale of takeaway liquor is prohibited prior to 10.00 am.

This course of action has been taken to support measures adopted by the Townsville City Council and local police to curb the perceived homelessness and public intoxication problems in the Townsville CBD, Dean Park, The Strand and surrounding areas and to support the Palm Island Alcohol Management Plan …”

  1. [3]
    Mr Lillywhite did not agree with the 10.00 am start for takeaway liquor sales.  He appealed to the Commercial and Consumer Tribunal.  The appeal was heard on 7 February 2007, by two members, Mrs G Spender and Dr M O'Donnell.  On 5 March 2007, they ordered that the decision of the Chief Executive be confirmed.  They published written reasons for their decision.
  1. [4]
    Mr Lillywhite now appeals to this court, against the decision of the Tribunal.

This Appeal

  1. [5]
    Section 100 of the Commercial and Consumer Tribunal Act 2003 sets out the requirements of a further appeal to this court.  An appeal is with the leave of the Court, and only available on the ground of an error of law.
  1. [6]
    In this case, it has been agreed that the question of leave, and the merits of the appeal, should be heard together.
  1. [7]
    This court may do any of the following:
  1. (a)
    confirm, annul, vary or reverse the Tribunal’s decision; or
  1. (b)
    remit the case to the Tribunal for further hearing or re-hearing; or
  1. (c)
    make consequential or ancillary orders or directions.
  1. [8]
    It was submitted for Mr Lillywhite that an error of law had been made, in that there was no evidence to support Mr Watters’ decision, in relation to his bottle shops.  The decision was criticised as being a conjecture, or a guess, rather than an inference based on facts.

An Error of Law

  1. [9]
    It will be understood that this court has no power to consider the merits of the decision to reduce the trading hours. It can only consider the impact of an error of law. If Mr Lillywhite can demonstrate that there is no factual basis for this decision, then he might succeed in overturning it.  His appeal must be to established principles of administrative law.
  1. [10]
    It is an object of the Commercial and Consumer Tribunal Act, that the Tribunal deal with matters in a way that is just, fair, informal, cost efficient and speedy.  It has to establish a system of dispute resolution that is just and fair.  See s 4(1) and (2) of the Act.  Those duties may be the foundations of a complaint, that the Tribunal failed to act in an appropriate manner.
  1. [11]
    The decision of the High Court of Australia in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 restates some fundamental principles of administrative review.  For present purposes, they are these (an abbreviated version of the judgment follows):

“… There is no error of law simply in making a wrong finding of fact … even if the reasoning whereby the court reached its conclusion of fact was demonstrably unsound, this would not amount to an error of law in the face of the record.  To establish some faulty (eg illogical) inference of fact would not disclose an error of law. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law.  So long as there is some basis for an inference – in other words, the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.  On the other hand, there are statements in the English cases which support a ‘no sufficient evidence’ test in the context of judicial review of findings of fact. …

Natural justice requires that the decision to make a finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self contradictory.”

(Mason CJ)

“If a statutory tribunal is required to act judicially, it must act rationally and reasonably.  Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably.  It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored.  It excludes the right to act on preconceived prejudice or suspicion. … When the process of decision making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.  Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

… It was necessary that any findings of fact made by the tribunal, and upon which a reviewable decision was based, were supported by some probative material which is properly before the tribunal.  If a finding of fact was not so supported, a decision which was based upon it was invalid. … A concern with substance as well as form by recognising that a decision made in compliance with those requirements must be based upon probative and relevant material.” (Deane J)

  1. [12]
    To similar effect is the statement by Gibbs J, in the High Court decision of Buck v Bavone (1975-76) 135 CLR 110 at 118:

“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. … The courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.  However, where the matter of which the authority is required to be satisfied is a matter of opinion of policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.  In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.  …  Where the authority is required to be satisfied it exists in some particular matters of objective fact, the position may be very different.  …  In the nature of things an erroneous decision by the Board on such a question could be readily reviewed by the courts. ….”

  1. [13]
    In Central West v Orange CC 128 LGERA 169 at 193, the decision of a local authority was being reviewed.  In substance, the judge put it this way:

“Thirdly, the argument, in truth, does not proceed upon the conventional understanding of the ground of judicial review of ‘legal unreasonableness’ … but proceeds upon a different basis of judicial review, namely the ‘no evidence’ rule.  … The applicant’s argument relied upon the principles applicable to judicially reviewing findings of fact collected by Spiegelman CJ …

‘I accept that a finding of primary fact by the conduct division will be vitiated if there was no probative evidence to support it.  Similarly, an inference of fact is vitiated if it is not open on the primary facts properly so found.’”

  1. [14]
    It was also submitted, correctly, that there is a difference between inference and conjecture. It is illustrated in paras 7, 134 and 135 of New South Wales v Buckland, NSW Court of Appeal, 31 March 2000:

“The line between inference and conjecture may not be easy to recognise, but the distinction is clear … I agree that no ground for inference is to be found in general considerations as to the likelihood of negligent conduct occurring in the condition which existed at the time and place of the collision.  One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed (Jones v Dunkel (1959) 101 CLR 298 at 305).”

The Liquor Act

  1. [15]
    Two provisions of the Liquor Act are significant in this case.  The first, s 107(c), gives the Chief Executive the power to impose conditions on licences:

“The Chief Executive may impose conditions on licences and permits –

  1. (a)
    …
  1. (b)
    …
  1. (c)
    to minimise harm caused by alcohol abuse and misuse and associated violence; or
  1. (d)
    to minimise alcohol related disturbances, or public disorder, in a locality.”
  1. [16]
    Section 111 gives the Chief Executive power to vary a licence, on the Chief Executive’s own initiative, in certain circumstances.  Section 111(2)(b) and (c) allows for variation of the ordinary hours of the licence, and the hours stated in the licence.
  1. [17]
    According to s 111(2)(g), the Chief Executive may vary a licence in relation to -

“another matter for the purpose of ensuring compliance with this Act or minimising harm caused by alcohol abuse and misuse and associated violence”.

  1. [18]
    Section 111(2A) goes on to say, that the Chief Executive may exercise those powers in the same way for all licensed premises in a restricted area.  That is an area declared under s 173G(1) to be a restricted area.  In this case, Townsville is not in a restricted area.  Palm Island is a restricted area.

The Facts

  1. [19]
    Some of the Townsville licensees formed the “CBD Safety Summit” for the city. They met in January 2006. On 13 March 2006 they wrote to Mr Watters at Brisbane:

“… At the January Safety Summit in Townsville, the stakeholders resolved to request that you consider a re-implementation of licence conditions to prevent takeaway liquor sales prior to 10.00 am.

The matter of patron abuse, in particular abuse by homeless persons, in acquiring takeaway liquor prior to 10.00 am is significantly reducing the amenity of the Townsville CBD and surrounding suburbs.  This issue was raised by the Queensland Police Service and the Townsville City Council and resolved by the stakeholders to request you to consider implementing a ban, for a period of 12 months, in the aforementioned area with respect to takeaway sales.

You should note the QHA did not support this proposal. … The Summit with the exception of the QHA urges you to consider this request as a matter of urgency and I look forward to your earliest reply. …”

  1. [20]
    On 5 April 2006, Mr Watters wrote to the Townsville Mayor, Mr Tony Mooney. He enclosed the above submission. He went on:

“I have been advised that this matter raised a concern in relation to public safety and amenity, and that both the Townsville City Council and local police would support such a prohibition.

Before inviting any affected licensees to respond, I am requesting your advice, including any evidence, research and/or statistical data in support of this proposal or otherwise.

For your information, I have transmitted a similar request to the Assistant Commissioner, Townsville Police, Mr John McDonald.  Upon the receipt of advice from yourself and police, I propose to consult further with the relevant licensees and make a determination pursuant to the provisions of the Liquor Act 1992. …”

  1. [21]
    At around the same time, officers of the Liquor Licensing Division were conducting an inquiry into sly grog sold on Palm Island – that is, illegal sales, according to the provisions of the Liquor Act.  Ingham was identified as the main source of liquor supplies, while Townsville was the secondary source.  The report recommended that the West End Hotel in Townsville have conditions placed on its licence, to restrict the sale of bulk liquor.  Otherwise, the report said that significant suppliers of bulk liquor to community members of Palm Island had not been identified, and that:

“this is because of the high number of licensed premises that operate in the city and surrounding suburbs that are reasonably accessible to community members of the island.  In respect to Townsville, generally the community members will travel by ferry or plane and then travel to Townsville’s local licensed premises and “shop around” for the best deal. …

It is further recommended that a condition be placed on all general liquor outlets in the Townsville region that prohibits the sale of liquor, in amounts greater than a carriage limit, …”

  1. [22]
    On 20 June 2006, Mr Watters wrote to each licensee in Townsville:

“I am writing to invite you to attend a Liquor Licensing Forum to be held on Friday 30th June 2006 …

The purpose of this workshop is to discuss liquor licensing issues in connection with the sale and supply of takeaway liquor in Townsville prior to 10.00 am.

As a result of an application made by the Townsville City CBD Safety Summit, and supported by Townsville City Council, police and Homelessness Committee, I am giving consideration to prohibiting all takeaway liquor sales in Townsville prior to 10.00 am.

Such regulation could proceed via the placement of a special condition on your current liquor licence, however before any action is taken in this regard I wish to consult with Townsville licensees in person in relation to the matter.

I look forward to meeting with you on 30 June next to canvas the issues and afford you an opportunity to participate in the important liquor industry discussion. …”

  1. [23]
    Following that meeting, Mr Watters wrote on 11 July 2006 to the CEO of the Townsville City Council:

“I refer to previous communication concerning the above and of my recent meeting with Townsville licensees …

Notwithstanding some reservations held by Townsville licensees, I was able to achieve an ‘in principle’ agreement to trial a prohibition on takeaway sales prior to 10.00 am in the greater Townsville area subject to support from local police and Council.

For example, licensees indicated that lighting, park benches, rubbish collection and related infrastructure provided by the Townsville City Council were contributing to the presence of unduly intoxicated indigenous persons in and around the Townsville Mall, CBD, Strand and Dean Park. …

In this regard, discussions with licensees revealed that the presence and location of community food vans, soup kitchens and other welfare support strategically located in and around the CBD encourages vagrants and intoxicated persons to frequent this area. …”

  1. [24]
    On the same day, Mr Watters wrote to Assistant Commissioner Wall of the North Queensland police region.  The letter mentioned that the licensees had discussed policing of unduly intoxicated indigenous persons in and around the Townsville Mall, CBD, Strand and Dean Park.
  1. [25]
    Mr Wall replied on 22 August 2006:

“As you are aware, I am a strong supporter of the proposed takeaway changes. …

The recent changes to the Police Powers and Responsibilities Act 2000 relating to ‘move on’ powers has also made a significant difference to the way police address public disorder in the CBD area.  Police are now able to give move-on directions in all public areas with this enforcement option proving very useful to operational staff.

A number of local strategies have been developed and implemented by Senior Sergeant Last which highlight changes in the way the inner city is policed. …

I believe the proposed takeaway liquor sales restrictions will serve to reduce the public drunkenness issues in the Townsville inner city area and the above police strategies adequately deal with improper conduct associated with public drunkenness.”

  1. [26]
    The CEO of the Townsville City Council wrote to Mr Watters with respect to any prohibition of takeaway sales of alcohol prior to 10.00 am “in the greater Townsville area”. The letter went on:

“The problem is not Council infrastructure and services but the ready availability of alcohol in our parks from early morning each day as a result of early sales.

… The Joint Management Group involving Council, police and relevant State Government Departments and Agencies has been set up to coordinate a response to the problem of drunks and homeless people.  However, the JMG has been meeting and introducing measures to overcome these problems for many years.  No ‘silver bullet’ is available to deal with this problem and incremental actions and improvements have been the way forward. …

Overall, it is the strong view of the Council that a major contributor to the problem is early morning, pre-10.00 am sales of alcohol.  Your action to vary licence conditions to prevent pre-10.00 am sales of alcohol is seen as an important and necessary step in dealing with the problem.  It would have the strong support of Townsville City Council. …”

  1. [27]
    On 7 September 2006 Mr Watters wrote again to all licensees in Townsville, inviting them to another Liquor Licensing Forum:

“The purpose of this workshop is to further discuss liquor licensing issues previously discussed with Townsville licensees on 30th June last, at which time an ‘in principle’ agreement was reached in relation to the prohibition of takeaway sales prior to 10.00 am subject to a commitment for improved police and Townsville City Council support and infrastructure.

I have recently received written confirmation from both Townsville police and the Townsville Council in relation to their support and new projects to assist this pilot program.

It is therefore my intention to place a condition on all Townsville liquor licences prohibiting the sale of takeaway liquor prior to 10.00 am, however before proceeding in this regard, I wish to further meet and discuss the relevant issues with local licensees. …”

  1. [28]
    On 20 October 2006, Mr Watters wrote to 26 licensees, including Mr Lillywhite.  He gave notice of an intention to vary their licence conditions:

“As you know, an Alcohol Management Plan (AMP) was imposed on the community of Palm Island on 19th June 2006, resulting in strict alcohol restrictions.

There is a perceived homelessness and public intoxication problem in the Townsville CBD, Dean Park, The Strand and surrounding areas.  Further, a quantity of recent evidence demonstrates that since the introduction of the Palm Island AMP, there has been a worsening in social conditions in and around Townsville, including increased public drunkenness, antisocial behaviour, homelessness and related amenity issues.

In an effort to address these matters the Townsville City Council and local police have implemented a range of strategic measures, including the introduction of new police move-on powers, increased police beat numbers in the Townsville CBD, Mall and Dean Park, adjusted police rosters to provide early morning police patrols and a range of Council homelessness support and infrastructure.

With reference to my recent discussions held with Townsville licensees in forums conducted on 30th June and 29th September 2006, you are hereby provided with written notice that I intend to vary the existing licence conditions on all general licences in Townsville, to prohibit takeaway liquor sales prior to 10.00 am for a trial period of six months, after which a review of this decision will be conducted.

Under section 112 of the Liquor Act 1992 you have 14 days, from the date of this letter, to notify me in writing of any objection or comment in respect to this matter. …”

  1. [29]
    Messrs MacDonnell’s solicitors wrote two letters on behalf of Mr Lillywhite. In similar terms, they related to his two hotels, the Hotel Stuart, and Bohle Barn, and six detached bottle shops. The letters objected to the proposed change to the licensing conditions. The letter referring to the Hotel Stuart made these observations, as part of the objection:
  1. (a)
    the Hotel Stuart is on Stuart Drive, about 10.3 kilometres from Dean Park, the closest of the problem areas mentioned.  It was unreasonable to assume, nor had it been demonstrated, that the hotel contributed to perceived homelessness and public intoxication in the problem areas;
  1. (b)
    the three detached bottle shops were about 8.36, 12.63, and 14.7 kilometres respectively from the closest of the perceived problem areas, Dean Park.  They did not contribute to any perceived problems;
  1. (c)
    each general licence premises and attached bottle shop in Townsville must be considered individually.  Townsville is not a restricted area, so that s 111(2)(a) (allowing the Chief Executive to vary licence conditions in the same way for all licensed premises) do not apply;
  1. (d)
    the proposal treats all general licence premises in Townsville the same and seeks to impose the same conditions on all licensed premises.  Matters have not been considered, such as the locality of the premises, their distance from the perceived problem areas, the style of the premises, the clientele of the premises and their liquor licensing records;
  1. (e)
    while s 107C of the Act allows the Chief Executive to impose conditions or licences, with respect to minimising the harm caused by alcohol abuse, and minimise alcohol related disturbances, or public disorder, and locality, it had not been demonstrated in this case that any of the Lillywhite premises contributed to such harm, prior to the imposition of any condition;
  1. (f)
    the change in conditions would mean that two of the detached bottle shops, located in major shopping centres, would not be able to observe the terms of their lease, to open for trade during normal shopping hours;
  1. (g)
    the effectiveness of strategic measures being undertaken by the Council and the police must be determined, prior to imposing any restriction on trading hours.
  1. [30]
    Mr Watters did not accept those objections. On 23 November 2006, he wrote to the licensees, including Mr Lillywhite, giving notice that he had decided to impose the condition, that the sale of takeaway liquor be prohibited prior to 10.00 am.  That condition took effect from Monday, 4 December 2006 for a period of six months.
  1. [31]
    The change affected 25 hotels and 19 detached bottle shops across Townsville. Five of the bottleshops are owned by Mr Lillywhite. A reason for the change appears in a briefing note from the Indigenous Liquor Operators Unit to the Minister, dated 17 October 2006:

“During consultation licensees raised concerns if the ban were only to apply to hotels in the CBD and requested consistency of trading across Townsville.  This is to ensure no potential commercial advantage to hotels not affected by the ban and to address the potential for problems drinkers to ‘shift’ to non-affected hotels.”

The Statement of Reasons

  1. [32]
    Mr Watters gave a statement of his reasons, when requested to do so by the Tribunal. It is necessary to mention some relevant reasons.
  1. [33]
    Palm Island became a restricted area on 19 June 2006.  Sly grog was sold on Palm Island.  Interviews with numerous people identified Ingham as the main source of problem, while Townsville was the secondary source of supply.
  1. [34]
    Mr Watters included a reason for his decision:

“[16] The displacement of persons from Palm Island to Townsville as a result of the introduction of the AMP to dwell in a homeless state, causing social problems in the Townsville area stemming from early morning access to alcohol.

…

[18] There is a clear nexus established between the availability of takeaway liquor in Townsville and surrounding areas to the health, safety and wellbeing of indigenous persons in the area.”

  1. [35]
    Attention was paid to the reason for the changes throughout the Townsville area:

“[21]… Assistant Commissioner Wall advised the proposal put forward by TSS to prohibit takeaway sales prior to 10.00 am would be most beneficial and would help relieve indigenous alcohol issues in Townsville, including sourcing supply of alcohol for Island. He also advised that such a reform would only be manageable if it was supplied as a generic condition to all hotels and bottle shops across Townsville, not just the CBD. This was because sly grog offenders will think nothing of spending $20 or $40 on a cab fare to travel to the suburban areas on Townsville’s outskirts to gain access to sly grog. Mr Wall recommended that any pre-10.00 am prohibition on takeaway sales be applied across the board.

…

[24]On 29 September 2006, the Executive Director, Liquor Licensing Division met with the Townsville City Council. At the Townsville Joint Management Group meeting … The JMG opined that for any prohibition on takeaway sales to be effective, it would need to be applied to the entire Townsville area and suburbs. The JMG adopted the 20 kilometre radius previously suggested by Assistant Commissioner Wall.”

  1. [36]
    He made particular reference to the objections about the Stuart Hotel and the Bohle Barn, on behalf of Mr Lillywhite.  With respect to those objections, he had this to say:

“[28] On the distance argument, the Chief Executive considered that as the evidence suggested sly grog offenders made inflated profits, had no qualms about travelling long distances and hiring taxis. The relative distance from the Townsville CBD to the applicant’s premises was not relevant. If sly groggers and other persons seeking takeaway liquor were denied early access to takeaway liquor in the immediate Townsville CBD and the applicant’s premises were exempted from the condition, an easy option would be to access the applicant’s premises outside the CBD.

[29] In relation to the ‘blanket approach’ the relevant condition was imposed for reasons of effectiveness and equity on all takeaway traders within a 20 km radius of the CBD prior to 10.00 am. Where a bottle shop or hotel with a chain or multiple hotel group (such as Mr Lillywhite) falls outside the 20 km radius, but one bottle shop or hotel is within the 20 km radius, then all such premises were captured, on the basis that the Act clearly identifies a detached bottle shop as part of the main premises or general licence. Arguments concerning the distance of (Mr Lillywhite’s) licensed premises from the CBD were noted, but considered further compromised on the basis that police, Council and licensees requested that a locality wide approach be applied to all licensees. If persons can travel a relatively short distance to outlying areas, having different opening times at the applicant’s premises will create a migration of persons from the Townsville CBD and merely relocate the problems to another area. Logically, this would defeat the purpose of the condition.”

The Tribunal’s Reasons

  1. [37]
    It is necessary to return to the reasons given by the Tribunal. It took into account the reasons of the Chief Executive, parts of which are set out above.
  1. [38]
    The members took into account the submissions on behalf of Mr Lillywhite – that the decision maker had no authority to make a blanket variation, as there was a requirement to consider Mr Lillywhite’s individual circumstances; there was no evidence to show sales prior to 10.00 am from any of his premises would in any way have contributed to the perceived problems of sly grogging, homelessness or public intoxication in and about the Townsville CBD; there was no demonstration how the change could assist in alleviating the perceived problems, there was no legitimate foundation for the imposition of the conditions.
  1. [39]
    In reply, it was submitted for Mr Watters that his Statement of Reasons should be accepted, that Mr Lillywhite was afforded natural justice by way of extensive consultation, and that the decision was made with proper consideration of the individual merits of his circumstances.
  1. [40]
    The Tribunal went on to make these significant observations.

“[21]The Liquor Act does not permit ‘blanket’ variation of trading conditions except under s 112(2)(a), in restricted areas.

…

[32]We accept the evidence of Assistant Commissioner Wall that sly grog offenders are likely to travel to the applicant’s premises to obtain liquor supplies before 10.00 am if they are unable to purchase supplies at that time elsewhere in Townsville. The occasions on which such persons might have the need to purchase sly grog before 10.00 am at one of the applicant’s premises may not be frequent, but in view of the seriousness of the sly grog problem, a restriction on access to early sales is likely in our view to be helpful and is justified in the circumstances, provided the measure adopted does not have an unacceptable adverse impact on the applicant. In that regard we think that the removal of what is a privilege not a right, namely, the privilege of the extended hours permit for one to two hours early trading is reasonable in the circumstances.

[33]We also think that homeless indigenous persons may be prepared to travel a considerable distance to the applicant’s bottle shop premises if they are unable to obtain liquor supplies in the early morning elsewhere in Townsville.  We accept the view in that respect expressed by the police, Townsville City Council and the large number of licensees consulted by Mr Watters at meetings in Townsville, that if premises such as the applicant’s have different opening times from premises in the problem CBD areas, there may well be a migration of homeless indigenous people from the CBD, with the result that the existing problems are merely relocated to areas in the vicinity of the applicant’s premises.

…

[35]There is no evidence of alcohol related disturbances occurring in the locality of the detached bottle shops concerned, but the power in s 107C(1)(d) allows the imposition of a condition on premises in one locality to minimise harm or disturbances occurring in another locality, provided there is evidence of a connection between the operation of the affected premises and the harm or disturbance occurring in the other locality.  Here we are satisfied that there is a reasonably likely connection between early morning takeaway sales at the applicant’s detached bottle shops and the harm which is occurring from sly grogging in Townsville and from public intoxication in the CBD of Townsville.

[36]We find that, as of the date of the decisions under review, it was no longer in the public interest for the applicant to be permitted to trade in takeaway sales prior to 10.00 am, and the decisions to vary the applicant’s licences so as to prohibit such sales were in all the circumstances reasonable.  We will therefore order that the Chief Executive’s decision of 23 November 2006 be confirmed.”

  1. [41]
    It was submitted in this court, that the Tribunal was not in a position to reach the conclusion that it did. Several reasons were advanced. It was submitted that s 107C of the Act, giving the Chief Executive power to impose conditions on licences, applied only to an existing state of affairs, and not to things that might happen in the future.  That is too narrow an approach.  The power to impose conditions “to minimise alcohol related disturbances, or public disorder, in a locality” can be used, before a disturbance or disorder actually takes place.  It is unhelpful to give the ordinary meaning of the section a restriction, so that it can only be used to repair a problem that has actually arisen.
  1. [42]
    Secondly, it was submitted that there was no basis for the Tribunal to reach its conclusions about the possibility of sly grogging, and the migration of homeless people, to Mr Lillywhite’s bottle shops.  The Tribunal recognised that such things had not happened, but was satisfied that there was “a reasonably likely connection” between early morning takeaway sales at Mr Lillywhite’s detached bottle shops and the harm from sly grogging and public intoxication in the CBD.

Conclusions

  1. [43]
    The facts and inferences in the Tribunal’s decision can be traced back to the inquiries made by Mr Watters. He had information from the police about the likely, or possible, activities of those involved in sly grogging. They would be prepared to travel a considerable distance to obtain supplies. Both the police and some of the licensees who were consulted thought that a 20 km radius might be appropriate. It was suggested by the licensees that considerations of fairness required all licensees in the area to be restricted in the same way. He was also informed by officers of the Council, that the restriction should cover the entire Townsville area, to a radius of 20 km.
  1. [44]
    It is true that there could be no scientific proof that the maintenance of the extended hours at Mr Lillywhite’s bottle shops would end up contributing to the problems which Mr Watters was trying to deal with.  However, the possibility of sly groggers travelling to the bottle shops, and the possibility of Aboriginal people travelling to the bottle shops for takeaway liquor, were rational inferences from the known facts.
  1. [45]
    The Tribunal was considering responses to a pressing social problem affecting Aboriginal people. Mr Watters, and the Tribunal, were in the position of having a good deal of information about the nature of the problem, and some steps that might be taken to deal with it. It is true that speculative solutions, or those based on mere guesswork, could not be supported. However, the Tribunal’s decision was based on inferences arising from a reasonably extensive fact finding and consultation process. It should be accepted that Mr Watters took advice from those who could be expected to have informed opinions about the conduct of indigenous people in Townsville, such as a senior police officer, Council officers, and other licensees. He took into account considerations of practicality and fairness, in fixing the 20 km limit of the changes.
  1. [46]
    Mr Watters, and the Tribunal, were clearly entitled to reach the conclusion, that the bottle shop hours should be restricted to 10.00 am opening. Those conclusions were based on proper inferences made from the known facts. It is not possible for this court to conclude that there was such an absence of evidence, or proper inference, that, as a matter of law, this court could interfere in the Tribunal’s decision.
  1. [47]
    Leave to appeal should be granted. The appeal is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Reginald John Lillywhite v Chief Executive, Liquor Licensing Division, Dept of Tourism Fair Trading & Wine Industry Development

  • Shortened Case Name:

    Lillywhite v Chief Executive, Liquor Licensing Division, Dept of Tourism Fair Trading & Wine Industry Development

  • MNC:

    [2007] QDC 240

  • Court:

    QDC

  • Judge(s):

    Brabazon J

  • Date:

    11 Sep 2007

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2007] QDC 24011 Sep 2007-

Appeal Status

No Status

Cases Cited

Case NameFull CitationFrequency
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Buck v Bavone (1976) 135 CLR 110
2 citations
Jump To
Cite 1 - (1976) 135 CLR 110
Cite 2 - (1976) 135 CLR 110
Central West v Orange CC (2003) 128 LGERA 169
2 citations
Jump To
Cite 1 - (2003) 128 LGERA 169
Cite 2 - (2003) 128 LGERA 169
Jones v Dunkel (1959) 101 CLR 298
1 citation
Jump To
Cite 1 - (1959) 101 CLR 298

Cases Citing

Case NameFull CitationFrequency
Revestar Pty Ltd (ACN 089 001 525) v Chief Executive, Liquor Licensing Division [2009] QDC 1432 citations
1

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