Commissioner for Fair Trading v Mojoe Enterprises Pty Ltd ACN 632 920 560 (Occupational Discipline)

[2022] ACAT 6

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR FAIR TRADING v MOJOE ENTERPRISES PTY LTD ACN 632 920 560 (Occupational Discipline) [2022] ACAT 6

OR 13/2021

Catchwords:               OCCUPATIONAL DISCIPLINE – consent order – contravention of Liquor Act 2010 and Liquor Regulation 2010 – failure to retain CCTV footage – failure to maintain a security register – need to improve systems for counting patrons – failure to report “reportable incidents” – public reprimand – undertaking to minimise likelihood of further contraventions – financial penalty

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 65

Liquor Act 2010

Subordinate

Legislation cited:        Liquor Regulation 2010

Cases cited:Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68

Tribunal:Deputy Legal Registrar E Steel

Date of Orders:  30 November 2021

Date of Reasons for Decision:      28 January 2022

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR13/2021

BETWEEN:

COMMISSIONER FOR FAIR TRADING

Applicant

AND:

MOJOE ENTERPRISES PTY LTD ACN 632 920 560

Respondent

TRIBUNAL:Deputy Legal Registrar E Steel

DATE:30 November 2021

ORDER

Noting that the tribunal has considered the matters in section 65 of the ACT Civil and Administrative Tribunal Act 2008,

By consent:

1. The respondent, being the licensee of a nightclub in Civic between 2 August 2019 and the date of these orders, is publicly reprimanded.

2. The reprimand is to refer to the respondent as “Mojoe Enterprises Pty Ltd trading as a Nightclub in Civic”.

3. The respondent will give a written undertaking to the satisfaction of the Commissioner within 21 days of Tribunal orders concerning the steps it will take to minimise the likelihood of further contraventions of the Liquor Act, Liquor Regulation and its Risk Assessment Management Plan (RAMP), including the provision of training for, and the giving of written directions to employees and the adoption of relevant procedures for the following:

   (a)The storage obligations in respect of CCTV footage;

   (b)Procedures for maintaining a security sign-in register.

   (c)Compliance with COVID-19 occupancy loadings; and Reporting of incidents in compliance with the RAMP

4. The respondent’s licence is suspended for a period of 1 day, being Thursday 2 December 2021.

5. The respondent is to give a written direction to the Commissioner within 21 days of these orders to amend the Respondent's liquor licence to include a condition to retain CCTV footage for 21 days.

6. The respondent is to pay a financial penalty within 28 days of these orders in respect of the admitted contraventions in the amount of $7,000.

7. The directions hearing listed on 18 February 2022 and the hearing listed on 21, 22 and 23 February 2022 are each vacated.

   …………Signed………..

Deputy Legal Registrar E Steel

REASONS FOR DECISION

1. In these proceedings, the Commissioner for Fair Trading (the Commissioner) sought orders for occupational discipline against Mojoe Enterprises Pty Ltd (the respondent), a liquor licensee. The application was filed on 10 September 2021. The tribunal referred the matter to a mediation on 30 November 2021. The parties reached an agreement at the mediation, which finalised the application. These orders reflect the mediated agreement.

2. The role of the tribunal in disciplinary cases where the parties are in agreement or consent orders are sought was discussed by Presidential Member Daniel in Nursing and Midwifery Board of Australia v Izzard.[1] This process, in essence, requires that the Tribunal be satisfied that the occupational discipline orders sought are appropriate, notwithstanding they are agreed.

Background

[1] [2016] ACAT 68

1. The respondent was licensed under the Liquor Act 2010 to carry on the business of a licensed premises in Civic between August 2019 and November 2021.

2. The Commissioner sought disciplinary action against the respondent alleging it contravened the Liquor Act and the Liquor Regulation 2010 (the liquor laws). The grounds of those contraventions include:

   (a)A failure to retain CCTV footage in accordance with its Risk Assessment Management Plan (RAMP). A fault with the respondent’s system led to the corruption of the CCTV footage from 21 February 2021 and it could not be recovered. This had implications outside these proceedings as the lost CCTV footage may have assisted police in their investigation of an incident.

   (b)A failure to maintain a security register in compliance with its RAMP on 7 March and 2 April 2021. Some security guards signed the register at the end of these shifts rather than at the commencement.

   (c)A need to improve the systems for counting patrons, particularly having regard to COVID-19 occupancy loadings.

   (d)A failure to report “reportable incidents” to the Commissioner within the statutory time frame on 12 occasions between January and March 2021.

Considerations

1. Section 65(3) of the ACAT Act sets out the matters the Tribunal must take into account when determining what occupational discipline orders to make under section 66 of that Act. Section 65(3) states:

   In considering what occupational discipline to use against the subject person, the tribunal must consider the following:

   (a)     whether the person took reasonable steps to avoid the action (the contravention) that is the ground for occupational discipline;

   (b)     whether occupational discipline has previously been used against the person for a similar act;

   (c)     whether the person has taken steps to mitigate the effect of the contravention;

   (d)     the impact of the contravention on any other person;

   (e)     the likelihood that the person will act in a way that is a ground for occupational discipline in the future;

   (f)     whether the entity bringing the application has applied for particular occupational discipline to be used and, if so, the kind of occupational discipline applied for.

2. The facts as agreed clearly constituted grounds for occupational discipline. Thus it was open to the tribunal to make orders for occupational discipline, and section 66 provides the power to make orders in the terms proposed by the parties.

Are the proposed consent orders appropriate?

1. In making the orders, I considered the factors set out in section 65(3) of the ACAT Act. I noted that the respondent has not been the subject of disciplinary proceedings previously. The set of orders addressed each of the concerns raised by the Commissioner in the application.

2. Particular considerations in this matter were as follows:

   (a)Ordinarily, the public reprimand would attach to the name of the premises. The potential for negative publicity is a burden borne as part of the discipline imposed on the licensee. In this case, the respondent had sold the business of the premises and would only continue to operate it for a short time. Given the likely impact on the new owners, I accepted that the anonymity of the premises within the consent orders was appropriate.

   (b)The sale of the premises also affected the orders for the suspension of the respondent’s licence. The suspension for one day was appropriate given the respondent would shortly not be operating the business.

   (c)The fine imposed is of an appropriate amount and serves as a deterrent to the respondent and to liquor licensees more generally.

   (d)I considered it appropriate that a condition is attached to the respondent’s liquor licence to retain CCTV footage for 21 days. Although technical difficulties with the respondent’s equipment may explain the failure to retain the footage from 21 February 2021, the condition underscores the value of these recordings for both internal and external investigations. In this case, there was an impact on the community because of the loss of information which may have been captured in the footage on that particular day.

   (e)I considered that it was appropriate to reprimand the respondent for its failures to comply with important procedural requirements of the liquor laws. A reprimand expresses to the respondent, and to liquor licensees generally, the importance of maintaining the systems required by these laws.

3. The tribunal accepts that, with the benefit of the steps required by these orders, there should be no future contraventions of these requirements by the respondent.

………………………………..
Deputy Legal Registrar E Steel

Date(s) of hearing:	30 November 2021
Solicitors for the Applicant:	Ms S Lane, ACT Government Solicitor
Solicitors for the Respondent:	Mr M Mascitti, Kami Saeedi Law