Coatz v Director of Liquor Licensing

[2000] WASCA 126

COATZ -v- DIRECTOR OF LIQUOR LICENSING [2000] WASCA 126

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 126
Court:	THE FULL COURT (WA)
Case No:	FUL:63/1998	Heard:	5 APRIL 2000
Coram:	MALCOLM CJ KENNEDY J WALLWORK J	Delivered:	11/05/00
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	GRAHAM GAVIN COATZ DIRECTOR OF LIQUOR LICENSING
Catchwords:	Liquor licensing Appeal against disqualification from holding or being interested in liquor licence for 5 years Appellant licensee allowed non-approved company manager to operate as licensee Director not advised of non-licensee company's involvement and licence not transferred to company Mitigation of youth and admission outweighed by seriousness of breach
Legislation:	Liquor Licensing Act 1988, s 5, s 28, s 33, s 37, s 74, s 82, s 95, s 96, s 100, s 101, s 104, s 164, s 165
Case References:	Cooper v Director of Liquor Licensing, unreported; FCt SCt of WA; Library No 990109; 16 March 1999 Douglas–Brown v Commissioner of Police (1995) 13 WAR 441 Holden v Sainken, unreported; SCt of WA; Library No 970700; 12 December 1997 Malvaso v The Queen (1989) 168 CLR 227 O'Sullivan v Farrer (1989) 168 CLR 210 Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : COATZ -v- DIRECTOR OF LIQUOR LICENSING [2000] WASCA 126 CORAM : MALCOLM CJ

KENNEDY J
WALLWORK J

HEARD : 5 APRIL 2000 DELIVERED : 11 MAY 2000 FILE NO/S : FUL 63 of 1998 BETWEEN : GRAHAM GAVIN COATZ

Appellant

AND

DIRECTOR OF LIQUOR LICENSING
Respondent

Catchwords:

Liquor licensing - Appeal against disqualification from holding or being interested in liquor licence for 5 years - Appellant licensee allowed non-approved company manager to operate as licensee - Director not advised of non-licensee company's involvement and licence not transferred to company - Mitigation of youth and admission outweighed by seriousness of breach

Legislation:

Liquor Licensing Act 1988, s 5, s 28, s 33, s 37, s 74, s 82, s 95, s 96, s 100, s 101, s 104, s 164, s 165

(Page 2)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr M E Frichot
Respondent : Mr G T W Tannin & Mr J A Thomson

Solicitors:

Appellant : Kott Gunning
Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Cooper v Director of Liquor Licensing, unreported; FCt SCt of WA; Library No 990109; 16 March 1999
Douglas–Brown v Commissioner of Police (1995) 13 WAR 441
Holden v Sainken, unreported; SCt of WA; Library No 970700; 12 December 1997
Malvaso v The Queen (1989) 168 CLR 227
O'Sullivan v Farrer (1989) 168 CLR 210
Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241

Case(s) also cited:

Nil

(Page 3)

1 MALCOLM CJ: This is an appeal under s 28 of the Liquor Licensing Act 1988 ("the Act") against an order by the Liquor Licensing Court ("the Licensing Court") by his Honour Judge Greaves dated 30 April 1998 that:

"(1) The licensee, Graham Gavin Coatz, be disqualified for a period of five years from holding a licence or otherwise being interested in licence, pursuant to s 96(1)(f).

(2) The licensee to pay the complainants (sic complainant's) cost of $1,000."

2 Section 96(1) of the Act appears in Part III Div 13 of the Act which deals with disciplinary matters. Section 95 of the Act relevantly provides that:

(1) The Court may, on a complaint lodged under this section, take disciplinary action.

(2) The complaint must allege that proper cause for disciplinary action exists and set out the grounds on which that allegation is based.

…

(4) There shall be proper cause for disciplinary action if –

…

(b) the licensed premises are not properly managed in accordance with this Act;

…

(e) the licensee has –


(i) contravened a requirement of this Act or a term or condition of the licence."

3 Section 100(1) of the Act provides that:

"The conduct of business under a licence is always the responsibility of the licensee and shall be personally supervised and managed by a natural person, in accordance with this section."

4 Section 101(1) of the Act provides that:

(Page 4)

"Where under this Act –

(a) a requirement is made of a licensee; or

(b) an element of an offence is an act or omission on the part of a licensee,

a person appointed as manager, or permitted by the licensee to conduct, supervise or manage the business carried on under the licence on any premises is responsible as though that person were also a licensee of those premises and is liable accordingly, and a complaint may be made out against the person for the offence."

5 There were two complaints by the Director of Liquor Licensing ("the Director") dated 24 December 1996 against the appellant, who was referred to as "the licensee", and who at all material times had been the licensee under a cabaret licence for premises in Mandurah known as "Maxwell's Nightclub".

6 The first complaint was that between 21 December 1995 and 2 April 1996 the appellant did not properly manage the licensed premises in that he permitted Smart Investments Pty Ltd ("Smart") to hold itself out to the public as the licensee of the premises, contrary to s 101(3)(a) and s 95(4)(b) of the Act. The second complaint was that between 21 December 1995 and 2 April 1996 the appellant contravened a requirement of the Act in that he failed to supervise and manage personally the conduct of a business under the licence, contrary to s 100(1) and s 95(4)(e)(i) of the Act.

7 The appellant admitted the facts contained in each complaint and the particulars provided in respect of them. The facts were that between 21 December 1995 and 2 April 1996 Smart held itself out as the licensee of the licensed premises in that it operated trading accounts in respect of the licensed premises and obtained insurance cover in respect of them. The appellant admitted that he had permitted Smart to hold itself out as the licensee as alleged.

8 The particulars of the second complaint were that between 21 December 1995 and 2 April 1996 one Joseph Coci conducted, supervised and managed the business carried on under the licence in that he hired bar and security staff, drew up the staff rosters, organised the lighting and music, supervised the licensed premises during opening hours, and set up accounts with creditors on behalf of the licensee. The

(Page 5)

appellant admitted that Mr Coci was not approved as a manager of the premises and that at all material times he was aware that Mr Coci was conducting, supervising and managing the business carried on under the licence.

9 The appellant also admitted that:

(a) he obtained the conditional grant of the cabaret licence on 31 March 1995;

(b) Smart was incorporated in November 1995;

(c) the appellant, Mr Coci, and one Karen Zielinski were directors and shareholders of Smart;

(d) the licence became unconditional on 22 December 1995 and the premises opened for trade on 23 December 1995;

(e) Smart opened the trading accounts referred to in the second complaint prior to the commencement of trade on 23 December 1995 with the Swan Brewery Co Pty Ltd, Matilda Bay Brewing Co Ltd, Australian Liquor Marketeers (WA) Pty Ltd and Coca-Cola Amatil (Holdings) Pty Ltd.

10 The learned Judge was told that at all material times the appellant intended to transfer the licence to Smart. On 1 May 1996 an application was made to transfer the licence to a new company, Smart Investments 1996 Pty Ltd ("Smart 1996"). The Director of Liquor Licensing refused that application for the reasons set out in his decision dated 30 April 1998.

11 Having stated the facts, the learned Judge said:

"It is quite plain from these reasons that the licensee, Mr Coci and Mrs Karen Zielinski formed Smart with the intention that Smart should carry on business under the license. In my opinion, the facts which I have outlined and which form the subject of these two complaints are sufficient to establish that intention by way of inference on the balance of probabilities."

In my opinion, the facts admitted in respect of the first complaint reveal a flagrant breach by the licensee over a period of 4 months of the provisions of s 100(1) of the Act which provides that the conduct of business under a license is always the responsibility of the licensee and shall be personally supervised and managed by the licensee. The licensee offers no explanation why he did not apply to transfer the license to Smart at the time that the premises opened for business. The

(Page 6)

facts reveal more than a failure to comply with the formal requirements of the Act. In my opinion, they reveal that the licensee at all material times intended that Smart should conduct the business carried on under the license. As such, he allowed a corporate body whose Directors were not approved by the Licensing Authority to carry on business under the license.

The admitted facts in respect of the second complaint reveal that at the same time the licensee allowed Joseph Coci, a fellow Director of Smart, to manage the premises without approval.

In my opinion, where it is revealed that a licensee has deliberately undertaken such a course of conduct for a sustained period of time, the breaches of the Act strike at the foundation of the regulation of licensed premises.

In this case, I am of the opinion that the facts can lead to one conclusion only and that is that the licensee is not a fit and proper person to hold a liquor license. Counsel informed me that they were agreed that if the Court saw fit, the Court should order that the license be suspended for a period of three months. The Court has a wide discretion under s 96(1) of the Act in determining the disciplinary action with [sic which] should be taken. I consider that a suspension of this license for three months will not adequately deter this licensee and others from such conduct in the future. In my opinion, given the serious nature of these breaches the Court should order that the licensee be disqualified from holding a license or otherwise being interested in a license under the Act for a period of five years, pursuant to s 96(1)(f) of the Act. I further order that the licensee pay the costs of the complainant agreed at $1,000."

12 The appellant's notice of appeal seeks an order that the order so made by the learned Judge be set aside and in lieu thereof there be an order that the licence be suspended for a period of three months commencing 14 days from the date of the order and that the respondent pay the appellant's costs of the appeal to be taxed. The notice of appeal contains 13 grounds of appeal. At the outset of the hearing of the appeal, we were informed by counsel for the appellant that grounds 4 to 11 inclusive were abandoned. The remaining grounds are as follows:

"1 The penalty imposed by the learned Judge was in the circumstances manifestly excessive.

(Page 7)

2 The learned Judge erred in law in finding that the appropriate penalty was to disqualify the [appellant] for a period of 5 years from holding a licence or otherwise being interested in a licence. The learned Judge ought to have found that the appropriate penalty was to suspend the Licence for a 3 month period commencing 14 days from the date of the order.

3 The learned Judge erred in law in finding that the appropriate penalty was to disqualify the Licensee for a period of 5 years from holding a licence or otherwise being interested in a licence in that there was no evidence, alternatively no sufficient evidence, before the learned Judge to support this finding."

…

12 The learned Judge erred in law in that the learned Judge misconstrued Section 96(1)(f) of the Act in that there is no discretion pursuant to that subsection to order that the Licensee be disqualified from being interested in a licence under the Act.

13 The learned Judge erred in law in placing no or insufficient weight on the fact, or failed to take [into] account a relevant consideration, that the [respondent] agreed that a suspension of the Licence for a period of 3 months was an adequate penalty for the complaints."

13 No explanation was offered for the apparent delay in bringing this appeal on for hearing, given that the appeal was instituted on 1 May 1998. In this respect I note that s 29 of the Act provides:

"Where the holder of a licence appeals against a decision of the Court in respect of that licence or a permit relating to that licence ¾

(a) effect shall not be given to that decision of the Court; and

(b) the licence or permit shall (subject to the payment of any fees then due and payable) continue to have effect,

(Page 8)

unless the Supreme Court, by way of interim order, otherwise directs".

14 In this case no step was taken by the respondent to obtain any interim order. Given the circumstances, this may well have been an appropriate case in which application should have been made for an interim order.

15 It is apparent, however, that disciplinary proceedings pursuant to s 95 of the Act "have at least the flavour of quasi criminal proceedings, although it is accepted that to establish the contravention of the licence requires only proof on the balance of probabilities": Cooper v Director of Liquor Licensing, unreported; FCt SCt of WA; Library No 990109; 16 March 1999 per Murray J at 3; and cf. Douglas–Brown v Commissioner of Police (1995) 13 WAR 441.

16 In support of ground 1 of the appeal, it was contended that the penalty imposed was so excessive as to manifest error because:

(a) the appellant admitted the complaints without putting the respondent to the proof of them;

(b) at the time of the breaches the appellant was "of youthful age and naïve of his legal responsibilities" under the Act;

(c) he was contrite in admitting the complaints; and

(d) he had not been guilty of any prior breaches of the Act.

Further, it was submitted that by the time the penalty was imposed, the appellant had held the relevant licence for three years and one month. He had traded under it for a continuous period of two years and four months. In that period he had conducted the licence without any other incident and in accordance with the requirements of the Act, save for one overcrowding complaint. It was submitted that this demonstrated that he was a fit and proper person to hold the licence.

17 It was submitted also that prior to the imposition of the penalty in question, the respondent had publicly acknowledged that disqualification for a period of three months was the appropriate penalty in relation to this matter. It was submitted that while this concession was in no way binding upon the Licensing Court, it was at least indicative of the range of penalty appropriate in the circumstances. In my view, however, the learned Judge was entirely correct in characterising the facts of the case as revealing that the licensee had deliberately undertaken a course of conduct for a sustained period of time so that the nature of the breaches and the circumstances under which they were committed struck at the very

(Page 9)

foundation of the regulation of the sale, supply and consumption of liquor and the use and conduct of licensed premises on which liquor is sold, which are objects of the Act as stated in the long title.

18 Section 96(1)(f) of the Act does not impose any express limit upon the period of disqualification for a licence which may be for such "period as the Court thinks fit". Naturally, the discretion so conferred must be exercised judicially and in a manner consistent with the scope and policy of the Act: cf. Palace Securities Pty Ltd v Director of Liquor Licensing (1992) 7 WAR 241 at 249 – 252 per Malcolm CJ; at 256 per Seaman J; and at 264 per Wallwork J; and O'Sullivan v Farrer (1989) 168 CLR 210 at 216 – 217 per Mason CJ, Brennan, Dawson and Gaudron JJ.

19 The proceedings before the learned Judge in the Licensing Court were conducted on the basis of a statement of agreed facts dated 25 March 1998. These were that the conditional licence was granted to the appellant on 31 March 1995, at which time he began to arrange the fit-out of the licensed premises. He experienced some difficulty in arranging finance, as his father fell ill. Finance was to be provided by Smart. The arrangement by which the company was to provide the finance never eventuated. Finance for the fit-out of the licensed premises was eventually provided by Casula Management Pty Ltd ("Casula"), a company controlled by Mr and Mrs Zielinski which had been registered in November 1995. The applicant, Ms Karen Zielinski and Mr Coci became directors of Smart in November 1995. The appellant was a 50 per cent shareholder and the other two directors were 25 per cent shareholders. Smart opened the trading accounts referred to in the second complaint. This occurred prior to the licensed premises commencing operation on 23 December 1995. At this stage, Mrs Zielinski's only involvement was to assist with décor. Mr Coci's involvement extended to those matters in the agreed particulars. The respondent was not advised by the applicant of that involvement. Mr Coci's involvement was terminated by the applicant on 21 March 1996.

20 The applicant had intended to transfer the licence to Smart. The application for transfer was stalled due to the failure of Mr Coci over a period to inject money into Smart. Due to such failure, the company could not operate.

21 When interviewed by an inspector from the Office of Racing and Gaming on 12 February 1996, the appellant denied that Mr Coci worked at the licensed premises. As a result, Smart 1996 was incorporated in April 1996. The Directors of that company were Mr Zielinski and the

(Page 10)

appellant. The shareholders were Casula Management Pty Ltd ("Casula") and Party Central Pty Ltd ("Party"), being companies controlled by Mr Zielinski and the appellant respectively. By an application dated 1 May 1996, application was made to the Director to transfer the licence to Smart (1996). The Director refused the application to transfer for the reasons set out in his decision dated 28 August 1996, as appears from the findings of the respondent dated 28 December 1996. The Director found that at no time since the business opened had the appellant taken personal responsibility as sole licensee for the conduct of the business under the licence, as he was required to do by s 100 of the Act. The financial records clearly showed that it was Smart which was "in effective control and conducting the business". The Director said that during the course of the inquiries that commenced in January 1996, the appellant and Mrs Karen Zielinski, who were directors of Smart:

" … were made fully aware that no other person either directly or indirectly could have an interest in the business. [The appellant], in particular, at the time of the grant, at the issue of the licence and at the meeting with the Director in March 1996, was made fully aware of his obligations as sole licensee.

In determining whether a body corporate is a fit and proper person for purposes of the Liquor Licensing Act, the activities of persons who hold a position of authority is relevant. Section 33(6)(b)(c) specifically requires the licensing authority to consider the conduct of that person in matters to which the Act relates. In my view, in respect of the cabaret licence held by [the appellant], the activities of [the appellant] and Mrs Karen Zielinski, as directors of Smart Investments, were in breach of s 101(3) and s 104(1) and possibly s 109(1) of the Liquor Licensing Act 1988.

In my opinion, the objections lodged by Mr Coci, J Coci and K Smith relating to s 74(1)(c) is [sic are] sustained. For these reasons, I am of the view that Smart (1996) Pty Ltd is not a fit and proper person to hold a liquor licence and the application to transfer is therefore refused."

22 On that basis it was held that Smart 1996 was not a fit and proper person to hold a liquor licence and the application for transfer was refused.

23 Section 74(1)(c) (which was repealed in 1998) provided that:

(Page 11)

"No objection shall be made except on one or more of the following grounds-

…

(c) that a person directly or indirectly interested in the application or in the business, or then proceeds of the business, to be carried on if then application is granted is not fit and proper person to be so interested.

…"

24 Section 33(6) of the Act relevantly provides that:

"Where the licensing authority is to determine whether an applicant is a fit and proper person to hold the licence the matters to be taken to be relevant and amongst the matters to which consideration should be given include:

…

(b) the number and nature of any convictions of that person for offences in any jurisdiction;

(c) the conduct of that person in respect to other businesses or to matters to which this Act relates."

25 Section 101(3) provides that:

"Where the licensee of any premises permits another person -

(a) to hold himself or herself out to the public as the licensee; or

(b) to conduct, supervise or manage the business carried on there under the licence, other than in accordance with section 100,

the licensee commits an offence."

26 Section 104(1) provides that:

"Subject to this Act, if a licensee –

(a) enters into partnership with another person in relation to the business carried on under the licence;

(Page 12)

(b) enters into any agreement or arrangement under which another person may participate in the proceeds of the business carried on under the licence; or

(c) remunerates another person by reference to the proceeds or profits obtained from the business carried on under the licence or by reference to the quantity of liquors sold,

the licensee and that other person each commit an offence."

27 It was submitted on behalf of the Director that the offences admitted in the present case demonstrated that the appellant entirely disregarded his responsibilities as a licensee. He knowingly allowed Smart to act as licensee, operate trading accounts and obtain insurance. He permitted Mr Coci effectively to run the licensed premises. When interviewed about the latter's involvement during the relevant period, the appellant falsely denied that Mr Coci worked at the licensed premises, but allowed Mr Coci to continue with his control for at least two months afterwards. It was submitted on behalf of the Director that this was a case of a licensee blatantly disregarding his duties as licensee, even when put on notice that he was acting wrongfully.

28 I accept this submission. The policy of the Act strongly indicates that a licensee is to be held personally responsible for acts or omissions on the licensed premises. Thus:

(a) s 100(1) provides that the conduct of the business under a licence is always the responsibility of the licensee;

(b) it is an offence for a licensee to permit any other person to hold themselves out as the licensee of premises: s 101(3);

(c) a licensee is liable for offences committed on the licensed premises by an employee or agent, or by someone who purports to be an employee or agent, even if the licensee did not know and could not reasonably have been aware of or have prevented the commission of the offence: s 165;

(d) a licensee may be subject to disciplinary action under s 95(4)(f) for employing or engaging a person who commits certain types of offences in relation to the business carried on under the licence.

29 The emphasis on the personal responsibility of a licensee is also evident from the requirement in s37(1)(a) that the licensee be a fit and proper person and the necessity for the Director to approve any transfer of a licence: s 82. One of the objects of the Act is the provision of adequate

(Page 13)

controls over persons directly or indirectly involved in the sale, disposal and consumption of liquor: see s 5(2)(d) of the Act. It is clear that the provisions of the Act as it now stands place substantial emphasis on the personal liability of a licensee.

30 There is nothing new in this. The principle of personal responsibility is of long standing. In the context of the vicarious criminal liability of licensees, which is exceptional, the cases stretch back over a century. A summary of them appears in the judgment of Scott J in Holden v Sainken, unreported; SCt of WA; Library No 970700; 12 December 1997 at 10 – 11.

31 It was submitted on behalf of the appellant in support of grounds 1 to 3 of the grounds of appeal that the penalty of disqualification for 5 years was manifestly excessive given that the appellant had admitted facts alleged in the two complaints; he was youthful and naïve in respect of his responsibilities under the Act; he was contrite; and had not previously committed any breaches of the Act. I am quite unable to accept these submissions. On the contrary, I accept the submissions on behalf of the Director that the learned Judge correctly held that the Appellant had deliberately breached the terms of the Act for a sustained period of time and that his Honour correctly regarded this as striking at the foundation of the regulation of licensed premises. In my opinion the appellant's actions completely disregarded his personal responsibilities and the learned Judge was entirely justified in making the orders he did, in order to fulfil the objects of the Act. The penalty was not manifestly excessive.

32 As to ground 13, in my view, the learned Judge was not bound in any way by the fact that counsel for the appellant and the director both submitted that an appropriate penalty would be to suspend the licence for a period of three months commencing from 14 days after the date of the order. These submissions did not bind and should not have bound the learned Judge, as he correctly apprehended. The fact that there was an agreement between the appellant and the respondent could not affect the duty of the Judge to impose the penalty or sentence which was appropriate in all the circumstances. As Mason CJ, Brennan and Gaudron JJ said in Malvaso v The Queen (1989) 168 CLR 227 at 233:

"The court's sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement. Nor can such an agreement bind the Attorney-General not to exercise his statutory power to seek leave to appeal and to appeal in any case where, in his opinion,

(Page 14)

the proper administration of criminal justice requires that power to be exercised. Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceedings before the sentencing Judge and the course of proceedings is relevant to the order which should be made and the Attorney-General's application for leave to appeal, the court may have regard to those circumstances in determining whether leave to appeal should be given. In this case, the Court did not consider that question and no order giving leave to appeal is made."

33 In the present case, the essence of the matter is that the submissions on behalf of the Director to the learned Judge regarding the period of disqualification did not have the effect of setting any tariff or penalty range, either at the hearing or for the purposes of this appeal. In my view, the approach taken by the learned Judge to the question of penalty was entirely justified. The actions of the appellant did strike at the heart of the licensing system and constituted an extremely serious contravention of the relevant statutory provisions and the conditions applicable to the licence. The length of the disqualification imposed was justified both by the need to punish the appellant and the need to bring it home to persons who do not take their obligations seriously that there will be appropriate sanctions applied.

34 For these reasons I am of the opinion that grounds 1, 2, 3 and 13 of the appeal were entirely without merit and should be rejected.

35 It remains to consider ground 12 which is directed to that part of the order made by the learned Judge by which the appellant was disqualified not only from holding a licence, but also from being otherwise interested in a licence. There is no power under s96(1)(f) of the Act to make an order of the latter kind. The relevant power is conferred by s96(1)(g) which provides that the Court may:

"disqualify, for such period as the Court thinks fit a person against whom a ground of complaint was made out from being -

(i) the holder of a position of authority in a body corporate that holds a licence; or

(ii) interested in, or in the profits or proceeds of, a business carried on under a licence,

subject to subsection ( 3);"

(Page 15)

36 Section 96(3) provides that:

"The Court shall not impose a penalty under subsection (1)(g) or on a person liable to a penalty as a result of s 164 where it is proved that the person concerned –

(a) did not know, and should not have known, of the matter upon which the ground of complaint was made out; or

(b) had taken reasonable steps to prevent the recurrence of a matter of the kind to which the complaint, or complaints, related."

37 The provisions of s164 subs (1), (1a), (2) and (3) are concerned with circumstances under which an offence under the Act is found to have been committed by a body corporate. Section 164(4) provides that:

"Where this Act provides that a licensee commits an offence, or that a proper cause for disciplinary action under section 96 is made out in respect of a licensee, in specified circumstances –

(a) a reference to the licensee shall be construed as a reference to each person who holds the licence; …"

38 In the present case the appellant was the sole licence holder.

39 The appellant rightly submitted that there was no power in s 96(1)(f) for the Court to disqualify a person from "otherwise being interested in a licence". That power is conferred by s 96(1)(g) of the Act. It was submitted on behalf of the Director that this Court should vary the order to give effect to its substance and order that the appellant be disqualified in terms of s 96(1)(g).

40 By s 28(5) of the Act, upon the hearing of the appeal this Court, in addition to the other powers expressly conferred, has power to vary the decision the subject of the appeal. In my view, for the reasons stated by the learned Judge below (with which I agree), an order in terms of s 96(1)(g) would have been appropriate in this case in order to fulfil the objects of the Act, given that the appellant had deliberately undertaken a course of conduct over a sustained period of time in which "the breaches of the Act strike at the foundation of the regulation of licensed premises". In my opinion it is quite clear that while the learned Judge referred only to s 96(1)(f), there was a clear intention to exercise the specific power conferred by s 96(1)(g). In the circumstances, such an order was entirely

(Page 16)

appropriate. The omission to refer to the latter provision in the order was no more than a slip.

41 For these reasons, I would vary par 1 of the order made by the learned Judge dated 30 April 1998 so that it would read:

" The licensee, Graham Gavin Coatz be disqualified for a period of five years from holding a licence pursuant to s96(1)(f) of the Liquor Licensing Act 1988 and from otherwise being interested in a licence pursuant to s96(1)(g) of the Act."

42 Subject to that variation, I would dismiss the appeal.

43 KENNEDY J: I have had the benefit of reading in draft the reasons published by the Chief Justice. I am entirely in agreement with those reasons and with the order proposed.

44 WALLWORK J: I agree with the reasons for judgment of the learned Chief Justice and with the order proposed by him.