COMMISSIONER for FAIR TRADING & TALIGENT PTY LTD TRADING as BAR 32 (Occupational Discipline)
[2010] ACAT 57
•2 September 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR FAIR TRADING & TALIGENT PTY LTD
TRADING AS BAR 32 (Occupational Discipline) [2010] ACAT 57 (No. 2)
AA 09/18
Catchwords: OCCUPATIONAL DISCIPLINE – LIQUOR – minor in bar-room – care of “responsible adult” – responsible supervision of minor - proving statutory exception to an offence – reasonable possibility that a matter exists or not - transitory act of kindness - evidential burden – Briginshaw standard
List of legislation: ACT Civil and Administrative Tribunal Act 2008
Criminal Code2002, s.58(7)
Liquor Act 1975, ss. 84, 85, 151, 157
List of cases: Briginshaw v Briginshaw (1938) 60 CLR 336
Chapman & Haines [2008] ACTSC 31
Hausmann v Shute [2007] ACTCA 5
Jones v Dunkel (1959) 101 CLR 298
Perkins v Pohla-Murray (1983) 51 ACTR 3Project Blue Sky v ABA (1998) 194 CLR 355
Tribunal: Professor P Spender, Presidential Member
Mr Allan O’Neil, Senior MemberDate of Orders: 2 September 2010
Date of Reasons for Decision: 2 September 2010AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 09/18
BETWEEN:
COMMISSIONER FOR FAIR TRADING
Appellant
AND:
TALIGENT PTY LTD TRADING AS BAR 32
Respondent
TRIBUNAL: Professor P Spender, Presidential Member
Mr Allan O’Neil, Senior Member
DATE: 2 September 2010
1.The Appeal Tribunal is satisfied that there is a ground for occupational discipline in relation to the Respondent in that it has contravened section 157(1) of the Liquor Act 1975
2.The Appeal Tribunal now orders that the matter be stood over for further hearing concerning any orders that should be made pursuant to section 66 of the ACT Civil and Administrative Tribunal Act 2008.
………………………………..
Professor P. Spender
Presidential Member
REASONS FOR DECISION
1.By an application dated 3 June 2009, the Commissioner ("the Appellant") sought an order for occupational discipline against the Respondent pursuant to sections 84 and 85 of the Liquor Act 1975 (‘the Liquor Act’).
2.The application for disciplinary action that was before the Original Tribunal and is now before the Appeal Tribunal is for contravention of section 157(1) of the Liquor Act by the Respondent as licensee. The Appellant sought the imposition of an occupational discipline order against the Respondent on the basis that the Respondent had breached section 157(1) of the Liquor Act by allowing a 13-year-old person to be in a bar-room on licensed premises other than in the care of a responsible adult.
3.Section 157 (1) states as follows:
Licensee allowing entry to bar-rooms by underage people
The licensee commits an offence if a person under 18 years old is in a bar-room of the licensed premises except in the care of a responsible adult.
4.The term "responsible adult" is defined in section 151 of the Liquor Act as follows:
Responsible Adult - for another person, means an adult who -
(a) is a parent, a 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
5.In its decision dated 15 May 2010, the Appeal Tribunal discussed the background of the appeal and found that the Respondent bears the evidential burden of establishing that the young person was in the care of a responsible adult for the purposes of section 157(1) of the Liquor Act.
6.The Appellant argues that it must establish a breach of section 157(1) and therefore make out the ground occupational discipline. Consequentially it is necessary for the Appellant to prove that on 3 May 2009 a person under the age of 18 years was on licensed premises conducted by the Respondent.[1] The Respondent asserts that the Appellant must prove that there was no responsible adult caring for the 13-year-old while she was in the bar-room.[2]
[1] Appellant's submissions 8 June 2010 at [1.5]
[2] Respondent's submissions 6 July 2010 at [3]
7.There is no dispute that the 13-year-old girl was found on the Respondent's premises on 3 May 2009 by the licensing inspectors. It was accepted by counsel for the Respondent in the original proceeding that a person under the age of 18 was found in the Respondent's bar area.[3] The CCTV footage shown in the original proceedings and in the appeal proceedings show a young person entering licensed premises at about 11:25 PM on Saturday 2 May 2009. The footage shows that the same young person was escorted into the back lane of the licensed premises at about 2:15 AM on 3 May 2009. The evidence indicated that two AFP officers and two licensing inspectors discovered the young person covered by a jacket asleep on a chair at the back of the premises. The evidence of Inspector Harrison was that there was no person within 3 metres of the young person.[4] Constable Bishop's evidence[5] indicates that he found the young person asleep and attempted to wake her up. He (or his partner) called an ambulance after there was no response to their first attempts to wake her up.[6] Constable Bishop and his partner carried the young person out the back through the fire escape door to the back lane.
[3] Appeal Book, page 48 lines 30 to 45
[4] Appeal Book page 53
[5] Appeal Book page 56
[6] Appeal Book page 56
8.Subsequent investigations determined that the young person was only 13 years old.[7]
[7] Appeal Book page 24
9.After Constable Bishop and his partner were in the back lane (subsequently identified as Verity Lane) with the young person for possibly five or more minutes they were approached by a male by the name of Adam Rustenberg.[8] Mr Rustenberg said that he knew the young person but only by her first name; he didn't know what her surname was. Constable Bishop also gave evidence that Mr Rustenberg couldn't tell him how old the young person was. He stated that she was friends with another person that he knew and she had possibly been staying with that other person at the Waldorf Apartments.[9]
[8] Appeal Book page 56
[9] Appeal Book page 56
10.There was some uncertainty as to whether Mr Rustenberg had been in the licensed premises. Inspector Harrison said in evidence[10] that Mr Rustenberg hadn't come out of the back door of the premises and Inspector Harrison thought that he had been at the delivery area of the licensed premises. Similarly Constable Bishop said that he thought Mr Rustenberg had walked in from the end of Verity Lane which is from Mooseheads or London Circuit. [11]
[10] Appeal Book page 54
[11] Appeal Book page 56
11.Constable Bishop gave further evidence that Mr Rustenberg mentioned an asthma inhaler after he had observed that the young person was hyperventilating slightly. "He kept saying, "I've got to get her out of her[e]. She needs her asthma puffer. Can I just take her and get the puffer?". Constable Bishop asked Mr Rustenberg for identification and Mr Rustenberg provided photo identification which indicated that he was 21 years old.[12] According to the evidence of Inspector Harrison, Mr Rustenberg then walked about 10 metres away and "just stood around over there" and then "went away in the end".[13]
[12] Appeal Book page 57
[13] Appeal Book page 54
12.Constable Bishop was asked by the President in the original proceeding to describe the extent to which the young person was hyperventilating. Constable Bishop replied that
"[s]he was just short of breath and she appeared to be struggling to gain breath and it was a very cold night. She had minimal - a tiny little dress on. We had a jacket that we'd wrapped around her so I believe part of it may have been just from the cold ... We didn't have concerns for her breathing at that stage.[14]
[14] Appeal Book pages 57-58
13.Constable Bishop gave evidence that when he first saw the young person lying on a lounge at the rear of the licensed premises she was covered by a jacket. However, the jacket that had covered the young person was not her jacket and Constable Bishop asked Mr Rustenberg as well as security staff from the licensed premises and none were sure where the jacket had come from.[15]
[15] Appeal Book page 59
14.There was further evidence before the Original Tribunal that the young person's mother was "down the coast".[16] The young person was taken to the police station where she was collected by one of her relatives. There is some inconsistency in the evidence as to a lapse of time between her being taken to the police station and being collected[17] and the Appeal Tribunal has concluded that this evidence is equivocal and therefore has not taken it into account.
[16] Appeal Book pages 16 and 49
[17] Compare the accounts given at Appeal Book page 13 and page 49
The Appellant's arguments
15.The Appellant submitted that it is clear from the evidence before the Original Tribunal that nobody was present in the licensed premises who met the definition of a "responsible adult" for the young person pursuant to section 151 of the Liquor Act. The Appellant further submitted that it is very difficult to suggest that the circumstances support the presence of a responsible adult. Those circumstances include the following facts;
·a 13-year-old young person was found asleep at the back of the bar in Civic at 2 AM on a Sunday morning having been there for nearly 3 hours and where it is not apparent that anyone was caring for her,
·nobody came forward to claim her over the period of time when the AFP officers arrived and tried to rouse her and then carried her out the back of the premises.[18]
[18] Appellant's submissions 7 June 2010 at [6.3]
16.The Appellant further argued that simply placing a jacket over her is not sufficient to meet the definition of responsible adult. The word ‘care’ imports an ongoing obligation. It cannot be suggested that a passerby who happen to see the girl asleep on the lounge and covered her with the jacket had by that act become a responsible adult, as defined, in relation to the girl.
The Respondent's arguments
17.As stated above, the Appeal Tribunal found in its decision dated 15 May 2010 that the Respondent bears the evidential burden of establishing that the young person was in the care of a responsible adult. The Respondent consequently relied upon section 58(7) of the Criminal Code for this stage of the proceedings, as follows:
"evidential burden" in relation to a matter means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter in existence or does not exist
18.
The Respondent argued that the Respondent will need to "point to evidence" that suggests a "reasonable possibility" that the young person was in the care of a "responsible adult" while in the bar-room of the licensed premises on
2-3 May 2009. The Respondent also relied upon the case law[19] which allows the defendant to point to evidence which has been led in the prosecution case. The Respondent accordingly relied upon evidence that had been adduced by the Appellant in the original proceeding. The Respondent argued that the evidence established the following:
i.someone had covered the sleeping young person with a jacket; and
ii.Mr Rustenberg had attempted to take the young person into his care at least for the purpose of providing her with an asthma inhaler when she was on, the evidence of Constable Bishop, hyperventilating.
[19] Chapman & Haines [2008] ACTSC 31 at [11]; Hausmann v Shute [2007] ACTCA 5;
Perkins v Pohla-Murray (1983) 51 ACTR 3.
19.The Respondent argued that the evidence supports these two propositions. The Appeal Tribunal is not satisfied on the balance of probabilities that the evidence supports the above-mentioned propositions. For example, it may be that the young person covered herself with a jacket, given that the origin of the jacket is unclear. On the second ground, Constable Bishop gave evidence that he did not consider that the young person was hyperventilating and that her breathing was consistent with a cold night. However, even if the Appeal Tribunal accepted that the two propositions are supported by the evidence, does the evidence suggest a reasonable possibility that the young person was in the care of a responsible adult while in the bar-room of the licensed premises on 3 May 2009?
20.The definition of "responsible adult" in section 151 Liquor Act connotes a degree of formality in the role of the carer and contemplates some continuity in the care provided by the responsible adult. It is necessary in interpreting the role of the responsible adult to note the relationships that come within that definition i.e. relationships that are domestic, familial or loco parentis. The Appeal Tribunal therefore does not accept the two transitory acts of kindness, that is, firstly covering the young person with a coat by an unknown person and secondly, an attempted assistance by Mr Rustenberg with an asthma inhaler, are sufficient for the purposes of the requirements of "responsible adult" under sections 151 and 157 of the Liquor Act.
21.The Liquor Act must be read as giving effect to harmonious goals[20] and it is necessary to consider the operation of section 151 in the context of 157. It is, with respect, a strained interpretation of section 151 that would allow random and transitory relationships to fall within its provisions. In particular, the definition of responsible adult in section 151 and the obligation of the licensee under section 157 are interrelated and the suggested interpretation of section 151 would deflect responsibility away from the licensee to ensure that underage drinkers are not in the bar-room.
[20] Project Blue Sky v ABA (1998) 194 CLR 355
22.In the view of the Appeal Tribunal, the nature of the relationship between the responsible adult and the young person must be sufficiently protracted in time to allow the responsible adult to assume responsibility for the young person. This is emphasised by the use of the word "care" in section 157(1) which connotes ongoing attention and some degree of commitment on the part of the adult. Such an interpretation is also contemplated by the second limb of the definition of "responsible adult" in section 151 (i.e. section 151(b)) which states that the responsible adult must "reasonably be expected to exercise responsible supervision of the other person". The Appeal Tribunal does not consider that a transitory act of kindness in the form of an offer of a coat or an asthma inhaler would indicate that such a person could reasonably be expected to exercise responsible supervision of the young person.
23.Moreover, factually the evidence pointed to by the Respondent does not suggest a reasonable possibility that the stranger who offered the coat or Mr Rustenburg could reasonably be expected to exercise responsible supervision of the young person. Mr Rustenburg did not appear to know the young person well; he did not know her surname and was unclear about where she was living. It could not be said that he could reasonably be expected to exercise responsible supervision of her. Similarly the stranger who provided the coat could also not reasonably be expected to exercise responsible supervision.
Conclusion
24.The Appeal Tribunal concludes that the Respondent has not discharged the evidential burden by pointing to evidence that suggests a reasonable possibility that the young person was in the care of a responsible adult on the licensed premises on the 2nd and 3rd of May 2009. Although the Respondent argued on the appeal that the Appeal Tribunal must be satisfied beyond reasonable doubt that the young person was not in the care of a responsible adult, the Appeal Tribunal does not accept this submission. The relevant standard of proof is not a criminal standard, but rather the civil standard applying the Briginshaw v Briginshaw test.[21]
[21] (1938) 60 CLR 336
25.The Appeal Tribunal is comfortably satisfied that the Appellant has established on the balance of probabilities that an under-age person was in the Respondent's bar-room premises on the 2nd and 3rd of May 2009 and therefore the Respondent has contravened section 157(1) of the Liquor Act. The Appeal Tribunal considers that the Respondent has not discharged the evidential burden in relation to the exception in section 157(1) and the failure of Respondent to discharge that burden has the consequence that there is no legal burden on the Appellant in relation to the matter in issue.[22] Even so, the Appeal Tribunal is comfortably satisfied that all of the elements of section 157(1) have been established by the Appellant, including the absence of a responsible adult.
[22] Odgers, Principles Of Federal Criminal Law (2007) at page 222
26.The Appeal Tribunal finds that the Appellant's case is sufficiently proved without recourse to Jones v Dunkel[23] inferences and therefore does not need to address the issues raised by the Appellant regarding the Respondent's failure to call Mr Rustenberg as a witness in the appeal proceedings.
[23] (1959) 101 CLR 298
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Professor P. Spender
Presidential MemberPUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AA 09/18
APPELLANT: The Commissioner for Fair Trading
RESPONDENT: Taligent Pty Ltd T/as Bar 32
COUNSEL APPEARING: APPELLANT: Mr Bayliss
RESPONDENT: Mr Colquhoun
SOLICITORS APPELLANT: ACT Government Solicitors
RESPONDENT: Wood Fussell Solicitors
OTHER: APPELLANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Professor P Spender, Presidential Member
Mr Allan O’Neil, Senior Member
DATE/S OF HEARING: 12 & 20 August 2010 PLACE: CANBERRA
DATE/S OF DECISION: 2 September 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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