COMMISSIONER for FAIR TRADING & TALIGENT PTY LTD TRADING as BAR 32 (Occupational Discipline)

The case before the tribunal involved a dispute between the Commissioner for Fair Trading (Appellant) and Taligent Pty Ltd trading as Bar 32 (Respondent). The Commissioner sought an order for occupational discipline against the Respondent, arguing that the Respondent had contravened section 157(1) of the Liquor Act 1975 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.

The key legal issues that the tribunal was required to decide were: 1) the burden of proof on the Respondent to establish that the young person was in the care of a responsible adult, and 2) whether the Respondent had discharged this burden by pointing to evidence suggesting a reasonable possibility that the young person was in the care of a responsible adult. The tribunal found that the Respondent had not discharged the evidential burden, and that the evidence did not suggest a reasonable possibility that the young person was in the care of a responsible adult.

The tribunal concluded that the evidence did not support the Respondent's arguments that a passerby covering the young person with a jacket or Mr Rustenberg attempting to provide her with an asthma inhaler constituted the presence of a responsible adult. The tribunal found that 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, and that a transitory act of kindness would not indicate that such a person could reasonably be expected to exercise responsible supervision of the young person.

As a result, the tribunal found that the Respondent had contravened section 157(1) of the Liquor Act, and the matter was 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.