Chief Commissioner of Police v Amjk Pty Ltd

[2018] VSC 250

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 03858

CHIEF COMMISSIONER OF POLICE	Plaintiff
v
AMJK PTY LTD	First Defendant
VICTORIAN COMMISSION FOR GAMBLING AND LIQUOR REGULATION	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 May 2018
CASE MAY BE CITED AS:	Chief Commissioner of Police v AMJK Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 250

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ADMINISTRATIVE LAW — Transfer of liquor licence — Objection by Chief Commissioner of Police — Decision by Victorian Commission for Gambling and Liquor Regulation approving transfer — Appeal on question of law — Failure to take into account relevant consideration relied on by Chief Commissioner — Error of law — Consent orders proposed by parties — Consent orders approved — Liquor Control Reform Act 1998 s 172A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Victorian Government Solicitor
For the First Defendant	LGS Legal
For the Second Defendant	Solicitor for the Victorian Commission for Gambling and Liquor Regulation

HIS HONOUR:

1. The plaintiff, the Chief Commissioner of Police (the Chief Commissioner), appeals from a decision made by the second defendant/respondent, the Victorian Commission for Gambling and Liquor Regulation (the Commission), on 28 August 2017 (the decision). The decision was made by the Commission on an application by the first defendant/respondent, AMJK Pty Ltd (AMJK), for internal review under s 153 of the Liquor Control Reform Act 1998 (Vic) (the LCR Act) of a decision by a delegate of the Commission.

1. In accordance with the procedure provided for in Practice Note SC CL 9, the appellant and the second respondent provided a joint memorandum in order to explain the basis for their proposed consent orders. However, the Court must be satisfied that the orders are appropriate.

1. The parties, including the first respondent, requested that the Court make the following orders:

(a)   the appeal be allowed.

(b)   the decision of the second respondent dated 28 August 2017 be set aside, and the matter be remitted to the second respondent to be heard and determined according to law.

(c)    there be no order as to costs.

1. I take the following account of the facts from the joint memorandum.

1. By its decision of 28 August 2017, the Commission determined to:

(a)   set aside the decision of the delegate; and

(b)   in substitution, grant an application to transfer an existing late-night (on-premises) liquor licence in respect of premises at 114-122 Moorabool Street, Geelong (the Licence) from Nolan Projects Pty Ltd to AMJK.

1. The Chief Commissioner and a Licensing Inspector, opposed the application for the transfer of the liquor licence. Relevantly, they submitted that AMJK had ‘within the preceding 3 years engaged in activities involving the trading in and marketing of liquor in a manner contrary to the provisions of the [LCR] Act’. Their submissions referred to infringement notices issued to AMJK in respect of different premises at 9-11 Malop Street, Geelong on each of 10 July 2016, 24 December 2016 and 28 January 2017. And, relevantly, they provided supporting evidence in the form of a statement of a Senior Constable of Police in relation to the alleged contravention that occurred on 28 January 2017, and a copy of the infringement notice that was issued to AMJK.

1. The Chief Commissioner appeals to this Court from the decision. That appeal is brought under s 172A(1) of the LCR Act, which provides that ‘[a] person whose interests are affected by a decision of the Commission under this Act may appeal to the Supreme Court, on a question of law, from a decision of the Commission’.

1. The Chief Commissioner filed submissions in support of his appeal on 1 February 2018.  Since that time, there have been two material developments:

(a)   On 8 March 2018, AMJK notified the parties to the proceeding, and the Court, that it would not make any submissions in response to the submissions of the Chief Commissioner; and ‘subject to the requirements of the Court… [would not] otherwise participate in the proceeding’; and would ‘abide the decision of the Court’; and

(b) On 29 March 2018, the Commission, by its submissions, conceded that the decision was affected by a vitiating error of law, insofar as the Commission failed to consider ‘the fact that, on 28 January 2017, AMJK… supplied liquor at [Quban Bar] other than in accordance with the licence, in contravention of s 108(1)(a)(i) of [the LCR Act]’.

1. The Chief Commissioner did not resile from his position that the Commission fell into error in the various ways set out in his Notice of Appeal and as explained in his submissions.  However, the parties agree that, in light of the Commission’s concession referred to above, it is unnecessary for the Court to determine whether the Commission made those further errors.

1. I am satisfied that the failure of the Commission to take the 28 January 2017 infringement notice into account does constitute an error of law and justifies setting aside its decision of 28 August 2017 and making the orders sought.[1]  That infringement notice was a significant part of the Chief Commissioner’s and Inspector’s opposition to the licence transfer. The Commission’s failure to consider the significance of that infringement notice is the basis of the Chief Commissioner’s appeal ground 1.4.

   [1]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

1. I will therefore order that:

(a)   the appeal be allowed.

(b)   the decision of the second defendant, the Victorian Commission for Gambling and Liquor Regulation, dated 28 August 2017 be set aside, and the matter be remitted to the second defendant to be heard and determined according to law.

(c)    there be no order as to costs.