COMMISSIONER for FAIR TRADING & TALIGENT PTY LTD (Administrative Review)
[2010] ACAT 49
•12 August 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR FAIR TRADING & TALIGENT PTY LTD (Administrative Review) [2010] ACAT 49
AA 09/18
Catchwords: OCCUPATIONAL DISCIPLINE – LIQUOR – licensed premises – person under 18 in bar room – care of responsible adult – proving statutory exception to an offence – matter within knowledge of a party– evidential burden of proof
List of legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)
Criminal Code 2002, ss.58 and 59.
Liquor Act 1975, ss. 6, 126-128, 138, 151-158 and 189.
Licensing Standards Manual made pursuant to s.33 of the Liquor Act 1975, clauses 31, 38 and 43.
List of cases: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Ex parte Ferguson: re Alexander
(1944) 45 SR (NSW) 64
at pp 66 & 67Nimmo v Alexander Cowan & Son Limited [1968] AC 107
Vines v Djordjevitch (1955) 91 CLR 512 at pp519 and 520.
Waugh v Kippen (1986) 160 CLR 156
Weller, Office of Fair Trading v El Homsi & Anor
(2009) NSWSC 282 at [18]
Tribunal: Professor P Spender, Presidential Member
Allan O’Neil, Senior Member
Date of Order: 20 May 2010
Date of Reasons for Decision: 12 August 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 18 of 2009
BETWEEN:
THE COMMISSIONER FOR FAIR TRADING
Applicant
AND:
TALIGENT PTY LTD TRADING AS BAR 32
Respondent
TRIBUNAL: Professor Peta Spender, Presidential Member
Allan O’Neil, Senior Member
DATE: 20 May 2010
ORDER
- Grounds 1 and 2 of the appeal are allowed.
………………………………..
Professor P. Spender
Presidential Member
REASONS FOR DECISION
This is an appeal from a decision made by the ACT Civil and Administrative Tribunal (the original tribunal) on 27 July 2009 to dismiss an application by the Commissioner for Fair Trading (the Appellant) for disciplinary action against a liquor licensee Taligent Pty Ltd T/A Bar 32 (the Respondent) for a breach of section 157(1) of the Liquor Act 1975 (the Act).
Section 157(1) of the Act provides that:
(1)The licensee commits an offence if a person under 18 years old is in a bar-room on the licensed premises except in the care of a responsible adult.
Maximum penalty: 50 penalty units.
The original tribunal dismissed the application because it was unable to be satisfied on the balance of probabilities that all of the elements of section 157(1) had been proved by the Appellant. In particular, the original tribunal was of the view that the Appellant had to satisfy the original tribunal that the underage person was not in the care of a responsible adult and the Appellant had failed to do so.
On 26 August 20009 the Appellant lodged an appeal against the decision of the original tribunal. The grounds of appeal were as follows:
(1)the original tribunal erred by finding that it was for the Appellant to positively establish that the young person was not in the care of a responsible adult;
(2)the original tribunal erred by failing to consider section 58 of the Criminal Code 2002 in determining whether evidence presented by the Appellant established a prime facie case of a contravention of section 157(1) of the Act;
(3)the original tribunal erred by failing to consider evidence that the young person had consumed alcohol on the licensed premises during the course of 2-3 May 2009 in considering whether there had been a contravention of section 157(1) of the Act;
(4)the original tribunal erred in finding it had not been established (at a prima facie level) that the young person was not in the care of a responsible adult.
On 25 March 2010 the matter came before the appeal tribunal by way of an interlocutory hearing. The parties made submissions about the form the appeal should take. The appeal tribunal (the Tribunal) decided that it would first deal with the issue of where the evidentiary burden fell to show that the young person was not in the care of a responsible adult.
The hearing took place on 20 May 2010. Mr Bayliss was counsel for the Appellant and Mr Colquhoun counsel for the Respondent. This tribunal upheld the appeal on the first two grounds and provided brief oral reasons for decision. The reasons for decision are now set out more fully.
The object of the Act as set out in section 6 is “to promote and encourage responsibility in the sale and consumption of liquor through the establishment of a scheme of liquor licences and permits”. For example, food must be provided and signs stating its availability must be in place (ss126 & 127) and the premises must be kept clean and in good repair (ss128 & 129). Clause 43 of the Licensing Standards Manual (LSM) made pursuant to section 33 of the Act requires that free tap water must be available to patrons.
An important part of this responsibility is the protection of vulnerable people such as intoxicated patrons (s138 prohibits the sale of liquor to such persons) and under age persons (ss151-158 set out a series of protective provisions including the section under consideration).
The issue before the Tribunal is whether the Appellant or Respondent has the evidentiary onus of proving the third element of the offence contained in section 157 of the Act. It is not in issue that the first two elements were proved by the Appellant. The third element of the offence is contained in the words “except in the care of a responsible adult”.
The definition of “responsible adult” is set out in section 151 of the Act and states:
responsible adult, for another person, means an adult who—
(a)is a parent, step-parent, guardian, person acting in place of a parent, carer or domestic partner of the other person; and
(b)could reasonably be expected to exercise responsible supervision of the other person.
However the general operation and meaning of section 151 is not a matter before the Tribunal at this hearing.
In Nimmo v Alexander Cowan & Son Limited [1968] AC 107 at 130 (Nimmo) Lord Wilberforce put the matter succinctly:
“… exceptions etc are to be set up by those who rely upon them”.
But the question is then raised, is the third element of the offence contained in section 157(1) an exception?
The words of Jordan CJ in Ex parte Ferguson: re Alexander (1944) 45 SR (NSW) 64 at pp66 & 67 are helpful in answering this question:
“If the offence were defined as consisting of a single concatenation of facts all were regarded as necessary ingredients of the offence, whether they were positive or negative in their nature; but, if the definition were twofold, in the sense that after a definition of the offence there was a distinct and separate provision exempting from liability in a certain event, only the first part was regarded as defining the ingredients of the offence and the second was regarded as a matter of confession and avoidance available by way of a defence.”
Those words, quoted by Kirby J in Weller, Office of Fair Trading v El Homsi & Anor (2009) NSWSC 282 at [18] (El Homsi), are strongly indicative of the evidentiary burden of proof falling on the Respondent and that it comes within the exception contained in section 157(1).
In the same case, Kirby J quoted with approval the High Court in Vines v Djordjevitch (1955) (91 CLR 512 at pp519 & 520) (Vines) where it stated that if legislation
“ … expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter. ... ”
Again those words suggest that the evidentiary burden of proving that the minor in the bar room of Bar 32 was in the care of a responsible adult falls on the Respondent.
In Nimmo, Lord Reid at p117 set out his view of how an exception is to be determined. He would, first, identify the genus of the duty or indeed offence in the first part of the requirement and then determine whether there is
“… a species within that genus which is withdrawn from the generality of the opening requirement”.
On the facts of this case the genus is under age persons in bar rooms and the species is under age persons in bar rooms who are in the care of responsible adults.
Both the Appellant and the Respondent relied upon Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 (Chugg) where Dawson, Toohey and Gaudron JJ said at p258
“ ... if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.”
The Respondent took the view that there was nothing in the form of the language used in section 157 of the Act or in the nature of the subject matter to suggest an exception upon which it bore the onus. Not surprisingly, the Applicant argued to the contrary. It is worth observing that in a later paragraph on p258 of Chugg their Honours offer assistance in resolving whether there is an exception and where the evidentiary onus falls:
“One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule.”
In the Tribunal’s view new subject matter has been introduced: the minor being in the care of a responsible adult. Thus it follows that the legislative intent was that the third element of section 157(1) was intended to be an exception. Therefore the evidentiary onus falls on the Respondent.
It was also said in Chugg at pp258-259 that if the new matter was particularly within the knowledge of the Respondent then it would point to the matter being an exception. Sections 151, 152, 153, 157 and 158 of the Act all deal with documents of identification. Clauses 31 and 38 of the LSM set out the requirements and methods of checking identification documents, including the levels of lighting required to enable that to occur. All licensees have security staff whose duties include checking identification.
A licensee, having checked identification, would know that the person was a minor and that entry could only be permitted if an identified responsible adult was caring for that minor. The licensee should be in a position to point to the responsible adult if an enquiry were to be made by a liquor inspector. A liquor inspector cannot be expected to guess at the identity of the responsible adult from among a group of patrons. That is something particularly within the knowledge of the responsible adult, the minor and the licensee. The Tribunal concludes that the third element of section 157(1) should be seen an exception where the evidentiary onus of proof is on the Respondent.
Mr Colquhoun argued that the structure of section 157 pointed to the third element of the offence being an integral part of it. It followed, he said, that the evidentiary onus fell upon the Appellant. Mr Colquhoun drew attention to subsections (3) and (4) of section 157 where the onus is expressly placed on a licensee to prove the elements of a claimed defence. He suggested that if the intent of the Act is for a defendant to bear the obligation under the third element of section 157(1), then it would have been similarly worded.
The Tribunal notes that section 157(1) also provides protection for a licensee against a prosecution for a breach of section 157(1), but does not indicate expressly where the evidentiary onus is placed, nor is it expressly called an exception to the offence provisions.
The Respondent inferred that because sections 157(1) and 157(2) are silent on where the evidentiary onus lies, the intention of the Act is that it is on the Appellant. The Tribunal does not agree. It seems to the Tribunal that the Respondent placed undue reliance on these different wordings which establish no more than the range of drafting devices relied upon by the legislature in framing section 157. The intention of the legislation is better discerned by the application of the approaches set out in Chugg, El Homsi, Vines and Nimmo.
Furthermore, and tellingly, the third element of section 157(1) commences with the word “except”, which the Tribunal takes as a strong indicator of how the provision is to be interpreted and where the evidentiary onus lies.
The Appellant has raised as a ground of appeal a failure to take into account section 58 of the Criminal Code 2002 (the Code). Sections 58(3) and 58(7) of the Code provide as follows:
58(3) Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.
58(7) In this Act:
evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
The issue before the Tribunal is where the evidentiary onus of proof lies, but section 59 of the Code deals with situations where the legal burden of proof is placed on a defendant and therefore section 59 of the Code is not relevant to the matter before the Tribunal.
These provisions are essentially the same as the common law principles applicable to the interpretation of section 157(1) discussed above. The provisions of the Code are in all material respects the same as the relevant sections of the NSW legislation considered in El Homsi and the Victorian provisions considered in Chugg.
In Waugh v Kippen (1986) 160 CLR 156, the High Court made it clear that whether proceedings were criminal or civil (and both options are available under the Act) the elements and construction of the obligation must be consistent. At page 165 the Court said:
Furthermore, the process of construction must yield for all purposes a definitive statement of the incidents of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings ... , the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action.
For the reasons set out above, the Tribunal upholds the first and second grounds of appeal. The third and fourth grounds will be considered by the Tribunal at a later date.
………………………………..
Professor P. Spender
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 09/18
APPLICANT: The Commissioner for Fair Trading
RESPONDENT: Taligent Pty Ltd T/as Bar 32
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Professor P Spender, Presidential Member
Allan O’Neil, Senior Member
DATE/S OF HEARING: 20 May 2010 PLACE: CANBERRA
DATE/S OF DECISION: 20 May 2010 PLACE: CANBERRA
DATE/S OF REASONS: 12 August 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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