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  4. Revestar Pty Ltd (ACN 089 001 525) v Chief Executive, Liquor Licensing Division - [2009] QDC 143

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Revestar Pty Ltd (ACN 089 001 525) v Chief Executive, Liquor Licensing Division[2009] QDC 143

Revestar Pty Ltd (ACN 089 001 525) v Chief Executive, Liquor Licensing Division[2009] QDC 143

DISTRICT COURT OF QUEENSLAND

CITATION:

Revestar Pty Ltd (ACN 089 001 525) v Chief Executive, Liquor Licensing Division [2009] QDC 143

PARTIES:

Revestar Pty Ltd (ACN 089 001 525) (Appellant)

AND

Chief Executive, Liquor Licensing Division (Respondent)

FILE NOS:

2635/08

DIVISION:

District Court of Queensland, Maroochydore

PROCEEDING:

Civil Proceeding

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 May 2009

DELIVERED AT:

Maroochydore

HEARING DATE:

5 May 2009

JUDGE:

Judge J.M. Robertson

ORDER:

Leave to appeal is refused. Appeal dismissed.

Appellant to pay Respondent’s costs on the standard basis.

CATCHWORDS:

Appeal: appeal from decision of Commercial and Consumer Tribunal against decision of Chief executive on grounds of error of law, Administrative law: whether Tribunal applied appropriate standards of proof in accordance with Briginshaw v Briginshaw, whether disciplinary action taken was excessive

Legislation:

Liquor Act 1992 (Qld)

Commercial and Consumer Tribunal Act 2003 (Qld)

Cases Considered:

Briginshaw v Briginshaw (1938) 60 CLR 336

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

Lillywhite v Chief Executive, Liquor Licensing Division, Department of Tourism Fair Trading and Wine Industry Development [2008] QCA 88

COUNSEL:

Mr. M. Byrne QC with Mr. J. Horton for applicant

Mr. J. Griffin QC with Mr. M. Plunkett for respondent

SOLICITORS:

Rostron Carlyle Solicitors for the applicant

Crown Law for the respondent

INTRODUCTION

  1. [1]
    Revestar Pty Ltd (Revestar) is the licencee of the Normanby Hotel at Musgrave Road Red Hill in Brisbane.
  2. [2]
    In 2008, Revestar applied to the Queensland Commercial and Consumer Tribunal for the review of two adverse decisions made by the Chief Executive Liquor Licensing Division, Queensland Treasury under provisions of the Liquor Act 1992 (Qld).
  3. [3]
    The first decision in time was a deemed refusal on 13 March 2008 to re-new a 3:00am Extended Hours Permit which was due to expire on 31 March 2008; and the second, made on 27.03.08, was a decision to take disciplinary action against Revestar.
  4. [4]
    After a two day hearing on 28 and 29 July 2008, the Tribunal, on (3 September 2008) confirmed the first decision and varied the second by reducing the amount to be paid to Treasury by way of disciplinary action and by altering the conditions imposed on Revestar’s licence by the Chief Executive.
  5. [5]
    Revestar now appeals to this Court from the decision of the Tribunal. Whereas the appeal to the Tribunal was “by way of rehearing on the evidence that was before the Chief Executive”[1]; the appeal to this Court requires leave and can only be on the ground of an error of law or excess, or want, of jurisdiction.[2]
  6. [6]
    It was agreed between the parties that the appeal on the basis of error of law only would be argued in full with the question of leave being reserved.

BACKGROND

  1. [7]
    The Chief Executive based his decision to take disciplinary action against Revestar on a memo dated 12 February 2008 under the hand of Greg McAndrew, an Acting Senior Liquor Compliance Officer, whose recommendations were in turn based on his analysis of various crime reports, liquor incident reports and other documents set out in a document headed “Normanby Hotel – Analysis” attached to his report. These documents contained details of 35 incidents in or around the hotel, involving violence and threatened violence by intoxicated persons and/ or patrons of the hotel over approximately a 10 month period from February 2007 – December 2007. The memo also referred to 4 noise complaints from nearby residents and to other documents. Revestar was given an opportunity to respond to the proposed disciplinary action, and did so in a detailed response dated 13 March 2008. All of this material and the documentation on which the decision was based was before the Tribunal.
  2. [8]
    In deciding to take disciplinary action the Chief Executive relied upon four ground which are detailed in the 27 March 2008 decision:

Ground 1 – (Failure to comply with the Liquor Act 1992 (Qld)). s.136(1)(a)(i) provides that failure to comply with (the) Act is a ground for taking disciplinary action (against a licencee). Based on the various incidents of violence and threatened violence, the Chief Executive regarded Revestar as having (primarily) failed to provide and maintain a safe environment in and around the hotel contrary to s.148A of the Act. 

Ground 2 – (Failure to comply with an order of the Chief Executive). This was based on (3) incidents on 28.02.07, 30.12.07, and 27.01.08. On 24.12.07 a notice was issued by the Chief Executive to the Licencee pursuant to s.46 of the Act prohibiting glass in the car park area of the hotel. It was noted that police observed persons drinking from glass containers in the area on the 30.12.07 and 27.01.08 contrary to the order. Failure to comply with an order of the Chief Executive Officer is a ground for disciplinary action pursuant to s.136(1)(iv) of the Act.

Ground 3 – Based on the four noise complaints, the Chief Executive decided to take disciplinary action on the basis of s.136(1)(h)(i), in that the use of the premises or behaviour of people entering or leaving the hotel was causing disorderly conduct in, or in the neighbourhood of the hotel.

Ground 4 – Based on essentially the same evidence in support of Ground 1, the Chief Executive decided to take disciplinary action pursuant to s.136(1)(h) of the Act.

THE TRIBUNAL DECISION

  1. [9]
    At paragraph 66 of its reasons the Tribunal made the following order:

On the basis of all the material before us, we are satisfied that the following disciplinary action is justified in respect of Ground 1, 2, 3 and 4 relied upon by the respondent:

  1. The applicant will pay to Queensland Treasury within 14 days of the date of this decision the amount of ten thousand dollars ($10,000.00) for Ground 1 of the grounds for proposed disciplinary action, two thousand dollars ($2,000.00) for Ground 2 of the grounds for proposed disciplinary action and ten thousand dollars ($10,000.00) for Grounds 3 and 4 of the grounds for proposed disciplinary action, making a total of twenty-two thousand dollars ($22,000.00).
  1. The trading conditions of the Licence are varied by the imposition of the following conditions:

(a)The car park may be used for the supply and consumption, but not the sale of liquor, on 15 days nominated by the applicant per calendar year, subject to the following precondition:

(i)the applicant will provide to the Chief Executive an acoustic engineer’s report setting suitable noise limits, including patron noise, which will apply when the car park is used for the supply and consumption of liquor.

(b)Liquor must not be supplied to any patrons in the car park area in containers made of glass.

(c)No patron shall bring liquor onto the car park area in any container made from glass.

(d)Live entertainment is prohibited in the car park area.

(e)A letter box drop will be conducted within 500 metre radius of the premises seven (7) days prior to each car park event providing contact details of senior management on duty during the event.

(f)CCTV cameras are to be installed covering all public areas in and around the premises including the car park area, but excluding the toilets.

THE APPEAL

  1. [10]
    Revestar seeks to set aside orders 1, and 2(a), and the decision to confirm the deemed refusal of the extended hours permit on a number of grounds set out in the Notice of Appeal namely:
  1. The Tribunal failed to properly apply the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 in finding:

(a)the Applicant had failed to provide a safe environment as requires by s.148A(4) of the Liquor Act 1992 (Qld) (the Act).

(b)the Applicant had supplied liquor to persons who were unduly intoxicated or disorderly in contravention of s.156(1) of the Act.

(c)the Applicant had failed to comply with an order of the Chief Executive made under s.46 of the Act.

(d)the use of the premises was causing undue disturbance in the neighbourhood.

(e)the behaviour of persons entering or leaving the premises was causing disorderly conduct in, or in the neighbourhood of, the premises.

  1. The Tribunal, in making the findings referred to in 1 herein, mistook material facts.
  1. The disciplinary action that the Tribunal imposed is manifestly excessive.

DISCUSSION

  1. [11]
    Revestar’s argument is that because the Chief Executive’s original decision involved the imposition of “punitive sanctions”, the Tribunal failed in its reasons to properly apply the standard of proof in assessing the “strength” of the evidence described by Revestar as “untested, inexact and in many cases unreliable”.
  2. [12]
    The argument focuses on a number of alleged errors of fact contained in the Tribunals reasoning. Revestar’s complaint largely focuses on the Tribunal’s findings and discussion set out in paragraphs 36 – 39 of its reasons:

36  Section 148A(4) – failure to provide a safe environment. The incident reports, court records and other data provided by the police upon which the respondent relies establish that 35 violent incidents occurred at the premises between February and December 2007. A large number of these incidents involve patrons who are described in the police incident reports as being heavily intoxicated. The violent incidents include two “glassings”, fights between patrons and bar staff, and patrons and security staff. We consider that the inference can be properly drawn that on many occasions serious assaults have been committed by persons who prior to the assault were served alcohol while heavily intoxicated.

37 The applicant’s staff have regularly evicted patrons who were unduly intoxicated but we think that the totality of the evidence amply demonstrates that a large number of patrons have been served alcohol when the responsible service of alcohol demanded that they not be served. The anti-social behaviour which is evidenced in the incident reports and court briefs is of a kind which occurs when a person is unduly intoxicated. An isolated incident involving a serious assault does not necessarily indicate a failure on a licensee’s part to provide a safe environment and it is understandable that prosecutions have not occurred following individual violent incidents. We consider however that disciplinary action rather than multiple prosecutions was an appropriate response when violent incidents proliferated at the premises.

38 We agree with the views of Officer McAndrew of the Division expressed in the memorandum of 27 March 2008 to the executive Director. Officer McAndrew said that the evidence indicates that management practices are inadequate to deal with the number of patrons at the premises and their behaviour. There is a reactive managerial strategy rather than a proactive strategy to prevent patrons from behaving in an unsafe manner. It is not enough for the applicant to take action once an unduly intoxicated person is identified. The responsible service of alcohol requires the applicant to take preventative action so that repeated incidents of violent behaviour do not occur.

39 We are satisfied that the 35 incidents relied upon by the respondent which occurred between 4 February 2007 and 23 December 2007 established collectively a failure to provide a safe environment.  

  1. [13]
    In essence, the submission is that the Tribunal, in reaching these findings, has overlooked important deficiencies in Mr. McAndrew’s 12.02.08 memorandum, which were the subject of submissions before it by Revestar’s then senior counsel Mr. Flanagan S.C; and further it has mistakenly relied on a later memo from Mr. McAndrew on 27.02.08 (which was a response to Revestar’s submission) and not the earlier memorandum, much of which was replicated in the decision notice dated 27 March 2008.
  2. [14]
    As can be seen from paragraph 37 of the reasons, the Tribunal has acted on its analysis of the “totality of the evidence” and has not descended into a detailed analysis of every crime and/ or incident report upon which the Chief Executive based his decision notice.
  3. [15]
    In relation to factual matters Mr. Byrne QC for Revestar, focuses on 2 alleged errors in analysis of (2) out of the 35 incident reports relied upon by Mr. McAndrew. The argument is set out at paragraph 20(c) of Mr. Byrne’s written outline:

20 (c)In an attachment to the memorandum, Mr. Mc Andrew purports to “analyse” incidents and contraventions said to constitute evidence against the Applicant. That analysis is, in many respects, false and misleading, for example:

(i)The first item (4 February 2007) asserts a male person was seriously assaulted by the Applicant’s security staff. This of course is a most serious allegation. In fact, it was never established that such an assault ever occurred. It is not suggested changes were laid. There were conflicting reports of the relevant incident. To these subtleties Mr. McAndrew makes no reference;

(ii)an entry in relation to 28 April 2007 asserts:

A Male patron refused entry from one point attempted to gain entry through another point and was assaulted by the Security Provider on the door. Complainant received cut lip and bruising.

That report is false. The Police Crime Report says:

This provider could not have assaulted the complainant or it would have been on camera. … Video footage shows … could not have occurred as the security providers who evicted the complainant are on camera and return to their posts without incident. There is no evidence to substantiate an offence by any security provider and it unknown who caused the complainant’s injuries … As such please change status of report to not substantiated.

There is no doubt this material was available to Mr. McAndrew at the time he conducted his analysis. He must have chosen, however, to ignore it. The consequence of this and like errors is a memorandum which presents an exaggerated and unfairly prejudicial view to Mr. Mc Andrew’s senior managers concerning the Applicant’s conduct. 

  1. [16]
    The first item (the 4 February incident) is based on a detailed Crime Report which is at 1.1. of the folder which was part of the large amount of documentary material before the Tribunal. The Crime Report does refer to a complaint made by a person that he was assaulted by security staff on 04.02.07, which assault was witnessed by others, one of whom allegedly filmed the incident on his digital camera. The report refers to the complaint being made to the Hendra Police on 06.02.07, and the complainant having injuries consistent with his allegation of assault. The report then refers to the progress of the investigation, culminating in solicitors representing the security providers at the hotel informing police that the security personnel did not wish to be interviewed or make a further statement.
  2. [17]
    It is correct that no charges were laid. However Mr. McAndrew appears to have simply relied on the complainants account as summarised in the crime report and not referred to the details of the further investigation of the complaint. Although the Tribunal does not refer to such detail in its findings; given that Mr. Flanagan made the same    submission to it, there is no reason to doubt that the Tribunal did not take that into account.
  3. [18]
    The other incident referred to by Mr. Byrne is based on an officer’s report in a crime report. I agree that Mr. McAndrew’s “analysis” is unfair when one reads the whole of the officer’s report. Again, although the Tribunal did not descend to any detail, there is no reason to doubt that it did not consider Revestar’s submission which in fact (at 46(e) of Mr. Flanagan’s written submission to the Tribunal) reproduced the actual officer’s report which sets out the conflicts in the account of complainant on this occasion.
  4. [19]
    Before the Tribunal Revestar complained of Mr. McAndrew’s analysis of other incidents (25.04.07; 21.05.07 and 27.05.07) but those complaints are not maintained before this court.
  5. [20]
    I think that Revestar’s complaint about the Tribunal’s findings proceeds on a fundamentally wrong premise. Its argument adopts the terminology of penal provisions such as the use of “punitive” and “fines” to describe the actions of the Chief Executive in the decision notice. The proceedings were disciplinary in nature and fundamentally part of the Chief Executive’s statutory responsibility under the Act encapsulated in the Objects set out in ss.3(d) and (e):

(d)to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of this Act; and

(e)to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence.

  1. [21]
    The decision of the Chief Executive, and the Tribunal’s decision to affirm the decision in part was not to punish Revestar but rather to protect the public consistent with his statutory responsibility: Filippini v Chief Executive, Department of Tourism, Fair Trading & Wine Industry Development [2008] QCA 96 Keane JA at [17] – [27] referring to New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183 – 184.
  2. [22]
    These were not criminal proceedings, and Revestar’s submission before this Court, and more so before the Tribunal, tended to suggest otherwise. The Chief Executive does not need to wait until an offence has been proved before proceeding with disciplinary action which may (in addition to the payment of money) lead to variation of conditions “to minimise harm caused by alcohol abuse and misuse and associated violence; …”: see by analogy the reasoning of Brabazon QC DCJ in Lillywhite v Chief Executive, Liquor Licensing Division, Department of Tourism Fair Trading and Wine Industry Development [2007] QDC 240; upheld by the Court of Appeal in Lillywhite v Chief Executive, Liquor Licensing Division, Department of Tourism Fair Trading and Wine Industry Development [2008] QCA 88.
  3. [23]
    The same misconception infects the complaint based on Briginshaw v Briginshaw (1938) 66 CLR 336 and in particular the oft quoted extract from the judgment of Dixon J (as the Chief Justice then was) at 362. In drawing the inference (at paragraph 36) and making the findings it does (at 37) it is accepted that the Tribunal was required to apply the civil standard in accordance with the approach mandated by the High Court and to take into account the so called “sliding scale” referred to in the case which varies according to the seriousness of the issues involved. Mr. Flanagan made such a submission to the Tribunal and I am satisfied that the Tribunal proceeded accordingly.
  4. [24]
    Mr. Byrne’s oral argument expanded somewhat into a complaint about the failure of the Tribunal to give proper reasons, but again, as with the Briginshaw point this tends to treat the Tribunal as if it were a Court when it is not. The Tribunal is a creature of statute and derives its jurisdiction and power from statute. It is required to “deal with matters in a way that is just, fair, informed, cost efficient, and speedy”[3]; and “has the powers and discretions of the Chief Executive in respect of the matter under appeal…”[4]; is not bound by the rules of evidence and is entitled to “inform itself in any way it considers appropriate”[5]. The Court of Appeal in Lillywhite (supra) at [34], by reference to s.47(3) of the Commercial and Consumer Tribunal Act 2003 (Qld) (CACT Act) observed that it was plain that there is a legislative intention that the Tribunal not adopt procedures appropriate for a Court.
  5. [25]
    Revestar further submits that the Tribunal has erred in proceeding on the basis that it was the 27 March memorandum that was the subject of attack by it before the Tribunal, rather than the 12 February memorandum. This refers to the Tribunal’s reasons in paragraph 38 set out above.
  6. [26]
    Revestar’s submission on this point is set out in paragraph 19 of Mr. Byrne’s written submission:

19 But there is a larger error. The Applicant contended before the Tribunal that one of the memoranda which Mr. McAndrew had written and sent to the Acting Executive Director presented a misleading and inaccurate summary of the evidence. This memorandum was the basis in part for the issue of a “show cause” notice to the Applicant. The Tribunal appears to have mistaken the memorandum which the Applicant sought to impugn. It was not Mr. McAndrew’s 27 March memorandum to the Executive Director, but his memorandum to the Acting Executive Director (Ms. Woo) dated 12 February 2007 to which the Applicant had referred. The Tribunal failed completely to consider the Applicant’s submissions about that memorandum and the way in which it unfairly tainted the decision making process. No reference is made in the Tribunal’s reasons to this important issue, which occupied a considerable portion of the Applicant’s Senior Counsel’s oral (and written) submissions to the Tribunal.  

  1. [27]
    As I read the Tribunals findings (as a whole) its critical findings by way of inference (in 36) and on “the totality of the evidence” (in 37) are not referrable to Mr. McAndrew’s memorandum of the 27th February. As I read paragraph 38, the Tribunal is simply expressing its agreement with the opinion expressed by McAndrew in the later memo which was (in effect) an adversarial response to the submission made to the Chief Executive on behalf of Revestar on 13 March 2008. In any event, by having regard to Mr. McAndrew’s opinion the Tribunal was doing no more than having regard to opinions of people like him: see Lillywhite (supra) at [37] of the Court of Appeals’ ruling.
  2. [28]
    Mr. McAndrew did not base his opinion on “the evidence” as the Tribunal suggests but it is a minor error if an error at all. It certainly is not an error of law. The criticism appears to be that because the Tribunal has not specifically dealt with Revestar’s detailed criticism of McAndrew in the earlier memo therefore it has fallen into appealable error of law. It is clear to me, that when read ­­ as a whole, the reasons indicate that the Tribunal reached it conclusions on the basis of “the evidence that was before the Chief Executive”, as it was required to do by s.34(1) of the CACT Act.
  3. [29]
    Revestar’s submission was not part of the evidence. The Tribunal clearly considered its submission (see paragraph 35 of the reasons). There is no demonstrated error of law in relation to this point.
  4. [30]
    Criticism is also made of the Tribunal for drawing an inference, again from the totality of the evidence, that Revestar’s staff had supplied or allowed liquor to be supplied to or consumed by persons who were unduly intoxicated. The criticism really harks back to the Briginshaw point which I have not accepted in relation to the failure to provide a safe environment aspect of the disciplinary action related to Ground 1 in the Chief Executive’s decision. On a number of occasions the Tribunal refers correctly to the standard of proof required and quotes (without any disagreement) Mr. Flanagan’s submission that a high degree of satisfaction was required before a finding be made of failure to comply with the Act. Even if one set aside the two impugned incidents, it is impossible to criticize such an inference based on the totality of the evidence given the proximity of the incidents to the hotel referred to in the rest of the evidence.
  5. [31]
    My reasoning in relation to these findings of a failure to comply with the Act in relations to the unsafe environment aspect of Ground 1 applies equally to the Tribunals finding of a failure to comply with an Order of the Chief Executive based on police reports that on 27 January 2008 in excess of 13 patrons consumed liquor from glass bottles in the car-park contrary to such an order. That the Tribunal was attentive to its duty to apply the proper standard of proof, is demonstrated in its overturning of the Chief Executive’s decision to find against Revestar in relation to the incident on the 28.02.07 which was associated in McAndrew’s analysis of the police reports etc. with the impugned allegation of serious assault on that day.
  6. [32]
    Revestar complains about the Tribunal’s upholding of the Chief Executive’s decision to take disciplinary action on the basis of Revestar’s use of the premises claiming undue disturbance in the neighbourhood. The decision was based on 4 complaints from nearby residents, summarised in the Tribunals reasons at paragraphs 54 – 57. I agree with Mr. Griffin that Revestar’s criticisms amount to no more then an argument about the weight of evidence presented in that form. The Tribunal found that the complaints were “genuine”. It declined obviously to accept Revestar’s argument that the evidence in the form of letters only was unreliable. There is no demonstrated error of law in relation on this ground.
  7. [33]
    In relation to Ground 4, Revestar submits that the reasons (in paragraph 58) “reveals no real basis upon which the finding was capable of being made”. It is clear that in reaching it conclusion on this ground, the Tribunal has relied on a combination of the evidence in support of Ground 1 and the complaints from nearby residents in support of Ground 3. Again, my reasoning in rejecting Revestar’s argument based on Briginshaw in relation to Ground 1 applies to this ground.
  8. [34]
    This leads then the issue of the so called penalty. I have criticized Revestar for its use of the language of penal provisions, but the Tribunal itself referred to the imposition of a “fine” under the heading of “penalty” at paragraph 59 of its reasons. As I read the Act, a clear distinction is made between “disciplinary action” in Part 5 Divisions Subdivision 3 of the Act, and the many offence provisions, such as s.148(4) which come within Part 6.There is no reference to “penalty units” or “offence” in Part 5 Division 3 Subdivision 3, although (as has occurred in this case) disciplinary action can be taken for either failure to comply with the Act (s.136(1)(a)(i)) and for conviction of the licensee of an offence against the Act (s.136(1)(b)(i)).
  9. [35]
    During the hearing I sought assistance about previous decisions in which disciplinary action had been taken against a licensee which included the payment of money, and Mr. Griffin provided me with a 5 page document with details of such cases. That document itself uses the language of penal statute such as “offence” and “fine”.
  10. [36]
    During the hearing no-one referred me to the definition of “disciplinary action” in s.4 which means (relevantly):

“(g)requiring the licensee to pay to the department an amount of not more than $10,000.00”.

  1. [37]
    This is a footnote to the money figure which states:

“The department may require the licensee to pay the department an amount of not more than $10,000.00 for each ground for which the disciplinary action is taken – see Part 5, Division 3, Subdivision 3 (Disciplinary action relating to licenses)”.

  1. [38]
    It follows that, as there is no reference at all to “fines” or “penalty units”, care should be taken not to confuse disciplinary action under the Act with the offence provisions.
  2. [39]
    As I understand Revestar’s argument, it is the amount of money coupled with the other disciplinary action taken, namely the restriction of the use of the car park to 15 days a year which renders the disciplinary action imposed “manifestly excessive”.
  3. [40]
    The Tribunal reduced the amount to be paid by reference to its findings (see paragraph 59). No argument was made that the amount of money to be paid was excessive; or that to be accurate, in making such an order, the Tribunal made an error of law.

THE USE OF THE CAR PARK

  1. [41]
    Before the Tribunal, the Chief Executive argued that the car park area did not form part of the area of the licensed premises, however the Tribunal rejected that argument. The Tribunal said of this issue:

62 … “Only five of the 35 incidents relied upon by the respondent occurred in the car park. Of these five incidents, there were four allegations with respect to patrons queuing to gain entry to the premises, leaving just one incident in 12 months which took place in the car park area. We accept the applicant’s submission that, if the applicant is unable to make use of the car park queues are likely to occur more frequently on the footpath outside the hotel given the popularity of the premises. Public safety issues have arisen where queues block the footpath forcing passing pedestrians onto the busy Kelvin Grove Road.

63 In the end we think that the applicant should be permitted to continue to operate in the car park area but with the imposition of restrictive conditions and with trading in that area permitted only on a limited number of occasions each year, as for example when there is a major sporting event conducted at the nearby Suncorp Stadium. We consider that use of the car park would not pose a significant risk to public safety and would not create undue disturbance in the neighbourhood if that use restricted to 15 nights per calendar year, and we will impose a condition to that effect together with conditions imposing noise limits; requiring the notification of nearby residents prior to use of the car park on the nominated occasions; and prohibiting live entertainment in the car park area”. 

  1. [42]
    It is clear that the Tribunal was there acting appropriately to protect the public and, in settling on 15 days, the Tribunal can be taken to have had regard to an open offer to it by Revestar during the hearing to limit its use of the car park to a defined number of nights, although Revestar was asking for more days.
  2. [43]
    No error of law has been demonstrated on the basis that the overall disciplinary action imposed on Revestar was excessive, in the sense that it was infected by legal error.

EXTENDED HOURS TRADING

  1. [44]
    The Tribunal’s decision to affirm the deemed refusal of the Chief Executive to extend Revestar’s extended hours permit, was not part of the disciplinary action taken against it although, clearly, in reaching this decision the Tribunal had regard to some of the evidence relevant to the disciplinary hearing. The Tribunal was obliged to consider the matters set out in s.121(5)(g) and its conclusions about factors based on the evidence relating to those matters.
  2. [45]
    Mr. Byrne, in his submission, referred to only one aspect of the relevant material that the Tribunal was obliged to consider.
  3. [46]
    The Tribunal’s extensive reasons on this issue (67 – 77) show clearly that it carefully and fairly considered all relevant factors and took into account Revestar’s submissions.
  4. [47]
    There is no demonstrated error of law.

CONCLUSION

  1. [48]
    In my views, Revestar’s arguments on the appeal are without merit and leave to appeal is refused. The appeal is dismissed.     

Footnotes

[1] s.34(1) Liquor Act 1992

[2] s.100(1) Commercial and Consumer Tribunal Act 2003 (Qld)

[3] s.4(1)(b) Commercial and Consumer Tribunal Act 2003 (Qld)

[4] ss.21(2)(e)(i) and (ii) Commercial and Consumer Tribunal Act 2003 (Qld)

[5] s.47(4) Commercial and Consumer Tribunal Act 2003 (Qld)

Close

Editorial Notes

  • Published Case Name:

    Revestar Pty Ltd (ACN 089 001 525) v Chief Executive, Liquor Licensing Division

  • Shortened Case Name:

    Revestar Pty Ltd (ACN 089 001 525) v Chief Executive, Liquor Licensing Division

  • MNC:

    [2009] QDC 143

  • Court:

    QDC

  • Judge(s):

    Robertson DCJ

  • Date:

    29 May 2009

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) 66 CLR 336
1 citation
Jump To
Cite 1 - (1938) 66 CLR 336
Filippini v Chief Executive, Department of Tourism, Fair Trading & Wine Industry Development[2009] 1 Qd R 230; [2008] QCA 96
1 citation
Jump To
Cite 1 - [2008] QCA 96
Lillywhite v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry [2008] QCA 88
3 citations
Jump To
Cite 1 - [2008] QCA 88
Cite 2 - [2008] QCA 88
Cite 3 - [2008] QCA 88
Lillywhite v Chief Executive, Liquor Licensing Division, Dept of Tourism Fair Trading & Wine Industry Development [2007] QDC 240
2 citations
Jump To
Cite 1 - [2007] QDC 240
Cite 2 - [2007] QDC 240
New South Wales Bar Association v Evatt (1968) 117 CLR 177
1 citation
Jump To
Cite 1 - (1968) 117 CLR 177

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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