Boom Entertainment Pty Ltd trading as the Church Nightclub v Commissioner of Liquor and Gaming

[2013] QCAT 281

CITATION: Boom Entertainment Pty Ltd trading as The Church Nightclub v Commissioner of Liquor and Gaming [2013] QCAT 281

PARTIES:	Boom Entertainment Pty Ltd trading as The Church Nightclub (Applicant/Appellant)
v
Commissioner of Liquor and Gaming (Respondent)

APPLICATION NUMBER: GAR138-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Michelle Howard, Member

DELIVERED ON: 30 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. The application for a stay is refused.

CATCHWORDS:

LIQUOR AND GAMING REGULATION – STAY APPLICATION – where stay sought of part of a disciplinary decision – whether tribunal has power to stay part of a disciplinary decision

Elliott v QBSA [2010] QCAT 180

The Hideaway Café Bar Pty Ltd v Chief Executive, Office of Liquor & Gaming Regulation [2012] QCAT 46

The Music Kafe Pty Ltd v Chief Executive, Liquor & Gaming Regulation [2012] QCAT 217

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. The Commissioner of Liquor and Gaming made a decision that grounds existed to impose disciplinary action on Boom Entertainment Pty Ltd trading as The Church Nightclub. The decision required payment by Boom Entertainment of an amount of $10,000 and varied its license conditions including by requiring a specified ratio of crowd controllers on the premises according to the number of patrons, which is a significant increase over the usual ratio. Other conditions imposed relate to lighting levels and CCTV.

2. Boom Entertainment applied to the Tribunal to review the decision. It also sought a stay of the decision. The Commissioner did not oppose the granting of a stay in respect of the $10,000 payment, but did oppose the granting of a stay generally. Later, Boom Entertainment amended its application to the effect that it requested a stay only in relation to the requirement to provide additional security on trading nights other than Saturday nights and in respect of the payment of the amount of $10,000.

3. I made directions for the filing of material and submissions by both parties, including submissions from both parties about the basis upon which it was submitted that part of a decision could be stayed.

When can a stay be granted?

1. Sub-sections 22 (3) and (4) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), in effect provide that a stay may be granted pending hearing of a review if the Tribunal considers it desirable to do so, having regard to the interests of persons whose interests may be affected, the decision-maker’s submissions and the public interest.

2. In addition to those factors, the Tribunal may also consider other relevant matters. These include whether there is an arguable case (as modified to suit the review jurisdiction), the balance of convenience, and whether refusal would render a favourable decision on the review nugatory.[1] ‘Desirable’ connotes forming a positive view that granting a stay is desirable.[2]

   [1]The Music Kafe Pty Ltd v Chief Executive, Liquor & Gaming Regulation [2012] QCAT 217.

   [2]        Elliot v QBSA [2010] QCAT 180.

Can a partial stay be granted?

1. In The Hideaway Café Bar Pty v OLGR,[3] I considered whether a stay could be granted of one part of a reviewable decision, in that case, one condition imposed on a license granted, concluding that it could not. Section 22(3) of the QCAT Act provides for an order to be made staying the operation of ‘a reviewable decision.’ Unlike section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) which specifically provides for the staying of a reviewable decision or a part of it as the Administrative Appeals Tribunal may consider appropriate, the QCAT Act contemplates the staying of a reviewable decision, or not, in its entirety. Accordingly, it is not open to me to grant a partial stay.

   [3] [2012] QCAT 46.

2. The ambit of the stay sought is, in effect, an application for stay of two aspects or parts of the reviewable decision. As I am satisfied that I can not grant a partial stay, the application should be refused.

Further observations

1. However, in the event that I am wrong about not being able to grant a partial stay, I make the following observations. I would refuse the stay application because I am not satisfied that it is desirable to grant it, having regard to the matters considered below.

2. Boom Entertainment acknowledges 150 to 300 patrons per night from Sunday to Wednesday, unless a function is held in which case higher numbers are expected. On Saturday nights, up to 600 patrons are expected, although ‘it is often less busy than this.’[4]  

   [4]         Statutory Declaration of Holly Wakefield filed 6 May 2013.

3. Boom Entertainment estimates the additional weekly costs to it of implementing the required ratios of crowd controllers on Friday and Saturday nights would be a minimum of $924 per week. It does not estimate additional costs on other nights of the week. It asserts in somewhat vague terms that because of the decline in patronage in Fortitude Valley that it would find it difficult to afford the additional costs. It does not provide any evidence, other than this vague assertion, of financial ramifications. No evidence is provided about a negative impact on the business because of payment of the $10,000 amount.

4. Boom Entertainment submits that a stay would maintain current operating parameters and defer the $10,000 payment until hearing, with minimal impact from the latter on state revenue.

5. Although some financial impact of providing additional crowd controllers is disclosed, it appears to be a small amount in the scheme of the numbers of patrons expected by the Church. No actual hardship or adverse impact on the ability of the business to trade is alleged in respect of either the cost of the crowd controllers or the payment of the amount of $10,000.

6. The Commissioner submits that the reviewable decision imposes a condition necessary to protect the public safety because serious and violent incidents at the premises demonstrate that the licensee has failed to meet its legislative obligation to provide and maintain a safe environment in and around the premises. It says there are many incidents of intoxication of patrons, staff and violence.

7. Boom Entertainment acknowledges some incidents, but says that most of the incidents arise from Saturday night trading (giving rise to its modified application for stay). However, the Commissioner calculates that only 63% arise from Saturday night trading, the remaining 37% arising on other nights.  

8. It is not for me to make any definitive conclusions about the incidents. However, the Queensland Police Service Court Briefs relied upon by the Commissioner appear to indicate incidents arising from trade on nights other than from Saturday trading. However, a significant number of the incidents alleged do arise from Saturday trading.

9. The public interest is protected by arrangements, including conditions imposed as a result of disciplinary action requiring a greater number of crowd controllers, which promote the provision and maintenance of a safe environment in and around licensed premises.

10. In the circumstances of this proceeding, I am satisfied that the public interest in provision and maintenance of a safe environment outweighs any alleged financial impact on the licensee of the costs of additional crowd controllers and the $10,000 payment. Therefore, the balance of convenience favours refusing the stay application.

11. I am not satisfied that it is desirable to grant a stay. The application for a stay is refused.