Gardener and Ors v Chief Executive, Office of Liquor & Gaming Regulation and Anor
[2011] QCAT 542
•9 November 2011
| CITATION: | Gardener and Ors v Chief Executive, Office of Liquor & Gaming Regulation and Anor [2011] QCAT 542 |
| PARTIES: | Mr Howard Mark Gardener Mr Steve Rudlin |
| v | |
| Chief Executive, Office of Liquor & Gaming Regulation Piervale Pty Ltd |
| APPLICATION NUMBER: | GAR206-11 / GAR279-11 / GAR280-11 / GAR281-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 11 October 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 9 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The applications for extensions of time are dismissed. 2. The applications to review are dismissed. |
| CATCHWORDS: | APPLICATION FOR EXTENSION OF TIME – application to review a decision to grant ‘but not issue’ an Adult Entertainment Permit and application to review a decision to grant a Commercial Other Subsidiary On-premises (Entertainment) License and Extended Hours Approval under the Liquor Act 1992 – applications brought well out of time – whether extension warranted in the circumstances – whether member of the public with standing to apply for review – whether petition ineffective Queensland Civil and Administrative Act 2009, ss 20, 24, 61(1), 61(3) Hunter Valley Developments Pty Ltd v The Honourable Barry Cowan, Minister for Home Affairs Environment [1984] 3 FCR 344 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Howard Mark Gardener, Steve Rudlin, Kevin Miller and Pamela Lawson represented by Mr D Pratt of Counsel instructed by Russell Steele & Associates Pty Ltd t/as RSA Liquor Professionals |
| RESPONDENT: | Office of Liquor & Gaming Regulation represented by Mr DJ Robinson of Counsel Piervale Pty Ltd represented by Mr DM Favell of Counsel instructed by Liquor & Gaming Specialists |
REASONS FOR DECISION
Background
Mr Gardener seeks to review a decision of the Chief Executive of the Office of Liquor & Gaming Regulation made 10 March 2010.[1]
[1] Amended application to review a decision filed 29 August 2011 (Amended Application).
Mr Rudlin, Mr Miller and Ms Lawson seek to review the same decision of the Chief Executive of the Office of Liquor & Gaming Regulation.[2]
[2]Application to review a decision filed 13 September 2011(Rudlin); Application to review a decision filed 13 September 2011(Miller); Application to review a decision filed 19 September 2011(Lawson).
The Applicants each contend that the 10 March 2010 decision is a decision purporting to grant but not issue an Adult Entertainment Permit (AEP) to Halo Lounge Bar under the Liquor Act 1992 and that the Liquor Act 1992 does not allow this type of decision in respect to an AEP.
The 10 March 2010 decision was set out in a letter from the Chief Executive to each of the Applicants dated 27 April 2010[3] and relevantly states that “an application for an adult entertainment permit has been provisionally granted….subject to a final inspection by an officer of the Office of Liquor & Gaming Regulation and the completion of any further requirements as a result of that final inspection.” It set out rights of appeal and the relevant timeframes.
[3]Book of Relevant Documents p707-708 (Gardener); p638-639 (Rudlin); p644-645 (Miller); p683-684 (Lawson).
Mr Gardener gave evidence that he did not receive this letter and that he only became aware of the true nature of the 10 March 2010 decision in July 2011.
Mr Rudlin, Mr Miller and Ms Lawson also seek to review the decision of the Chief Executive of the Office of Liquor & Gaming Regulation made 4 September 2009 to ‘create’ a license after cancellation. It appears Mr Gardener may also be seeking to review this decision, there is a reference to it in Part C of the Amended Application which sets out what the applicant wants the Tribunal to do but not in Part B, which sets out the decision to be reviewed.
The time for making an application to review these decisions has long ago expired. The Applicants have therefore made applications to extend the time limit.[4] If the applications to extend time fail so must the applications for review.
[4]Section 61(1) QCAT Act; Amended application to extend a time limit filed 29 August 2011 (Gardener); Application to extend a time limit filed 13 September 2011 (Rudlin); Application to extend a time limit filed 13 September 2011 (Miller); Application to extend a time limit filed 19 September 2011 (Lawson).
The Tribunal cannot extend time if it would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages to a party to a proceeding.[5]
[5] Section 61(3) QCAT Act 2009.
The extension of time applications were heard together. The submissions by all parties centred on the 10 March 2010 decision. No separate submissions were made in relation to the decision of 4 September 2009. In fact during the course of the hearing it was asserted on behalf of the First Respondent that there was no appeal against the grant of the licence. The Applicants did not challenge this statement.
[10] This Tribunal has power to review decisions by the Chief Executive to grant or refuse an application.[6] The Tribunal does not have jurisdiction to review a decision to issue an AEP.
[6] Section 21 Liquor Act 1992.
[11] The Chief Executive neither opposes nor consents to the extension of time.
[12] Piervale Pty Ltd opposes the extension of time.
[13] In relation to Mr Gardener’s applications Piervale challenges his standing. No similar challenge is made in respect of the other Applicants.
Discussion and Decision
[14] There was no dispute that the following principles apply to an application for an extension of time[7]:
a)Whether there has been a reasonable explanation for the delay in filing the application for review;
b)Whether granting an extension is fair and reasonable in all the circumstances;
c)Whether there has been any prejudice suffered as a result of the delay;
d)That the substantive application has some merit.
[7]Hunter Valley Developments Pty Ltd v The Honourable Barry Cowan, Minister for Home Affairs Environment [1984] 3 FCR 344; Gallagher v QBSA [2010] QCAT 383.
Delay
[15] The Applicants contend that:
a)they have a reasonable excuse for the delay in seeking review of the decision as the ‘true nature’ of the decision was not disclosed to them until recently;
b)when they became aware of the ‘true nature’ they acted swiftly to seek a review.
[16] The Applicants submit that the decision to grant but not issue the permit for an indefinite period of time is unlawful and circumvents the legislative intention that such permits have a life of not more than 12 months.
[17] The Respondents:
a)deny that the Applicants were in any way mislead as to the ‘true nature’ of the decision;
b)say that each Applicant took advice or legal advice as to their appeal rights and formed a view that their prospects were not good and on that basis chose not to apply for a review within the time prescribed;
c)contend the granting of an AEP subject to conditions is permissible[8];
d)highlight that section 103R uses the term “issue” and does not use the term “grant”. Other sections relating to AEPs eg section 103O use the term “grant”. The concepts are to be construed as being different;
e)contend that the ‘true nature’ of the decision is to grant the AEP subject to conditions and therefore the Applicants have not been mislead;
f)contend there is no reasonable excuse for the delay.
[8] Section 107C Liquor Act 1992.
[18] The Tribunal has previously noted that a short delay is usually easier to excuse than a lengthy one.[9]
[9] CMC v Chapman & Or [2011] QCAT 229.
[19] The delay in this case is well in excess of a year.
[20] The ‘true nature’ of the decision and whether the terms “grant” and “issue” ought to be construed as the same would be a matter for determination upon the substantive application for review. It may be that there is an unintended legislative gap, which would be a matter for parliament to address. The Tribunal is a creature of statute and has no inherent jurisdiction unlike some courts. The Tribunal’s jurisdiction is found in the QCAT Act or enabling acts such as the Liquor Act 1992.
[21] There is some explanation for the delay.
Is it fair and reasonable?
[22] The Applicants contend that it is fair and reasonable to extend time in all the circumstances because the objectors ought to be permitted to have the decision reviewed now that the ‘true nature’ of the decision is known and information as to the history of the application is known.
[23] Piervale contends that it is not. Piervale gave evidence that it anticipates commencing to trade, subject to final approval being given, in mid November 2011. In preparation for trading it has employed staff and incurred expense in training those staff members.[10]
[10] Affidavit Tanya Louise Skinner sworn 5 October 2011.
[24] Piervale submits that:
a) if the extension of time was granted those staff would have uncertainty as to ongoing employment because they would not continue to be employed if the review application succeeded;
b)this prejudice to the employees goes to the fairness of allowing the applications for extension of time.
Prejudice
[25] The Applicants contend that:
a) there is no real prejudice to any party because:
i) the AEP has not issued and Piervale has not commenced trading;
ii) an AEP is only valid for a period up to 12 months and there is no certainty that an AEP will be renewed and therefore the investment in the premises is always at risk.
[26] The Chief Executive does not contend he will be prejudiced.
[27] Piervale has given evidence that it has incurred significant liabilities in respect of fit-out of the premises in excess of $1 Million since making enquiries as to whether any review applications had been filed and being informed that no such review had been commenced within time and that it anticipates commencing to trade, subject to final approval being given, in mid November 2011.[11]
[11] Affidavit Anthony Gerald Shead sworn 5 October 2011.
[28] As stated earlier in these reasons Piervale gave evidence that it had engaged staff and incurred expenses in relation to wages and training.
[29] Piervale also gave evidence that a further $700,000 will be incurred to ensure the premises are ready to trade. As the applications for a stay are not pursued this amount is likely to be expended well prior to any review application being determined should time be extended.
[30] The Chief Executive submitted that the Applicants overstated the level of uncertainty of the ‘renewal’ process and points to the fact that the Chief Executive in deciding whether to require applications for subsequent permits to be advertised is to consider certain matters.[12] It is clear that advertising will not always be required.
[12] Section 118(6)(b) Liquor Act 1992.
[31] Mr Shead, a director of Piervale, gave evidence of his experience that subsequent AEP applications are granted readily provided the premises have been operated in accordance with the Liquor Act 1992.[13]
[13] Affidavit Anthony Gerald Shead sworn 5 October 2011.
[32] I accept that the process for subsequent applications is not necessarily as onerous or therefore as uncertain as an initial application.
[33] I accept that Piervale’s significant investment incurred after the appeal period expired is at risk if the extension of time is granted and therefore the issue of prejudice arises.
[34] Appeal periods are specified to give certainty to parties and therefore an extension of time should not be granted lightly where parties have relied upon the decision and incurred significant expense.
[35] The prejudice to Piervale is a significant factor which weighs against allowing the applications to extend time.
Merits
[36] The Applicants submit that:
a)there are overwhelming merits to the review; and
b)they have demonstrated that there is an arguable case or at least that the grounds for review are not hopeless.
[37] In any review by this Tribunal of a decision to grant an AEP the purpose is to produce the correct and preferable decision by way of a fresh hearing on the merits.[14] It is not necessary for the applicant to point to matters such as lack of procedural fairness or misapplying discretions to establish that the decision ought to be reviewed. The only matters of relevance relate to what decision ought to be made.
[14] Section 20 QCAT Act 2009.
[38] The Tribunal may:
a)confirm or amend the decision;
b)set aside the decision and substitute its own decision; or
c)set aside the decision and return it to the decision-maker.[15]
[15] Section 24 QCAT Act 2009.
[39] The Applicants have demonstrated that there appears to be a number of events which occurred in relation to Piervale’s application which seem unusual or irregular.
[40] On a preliminary assessment these matters do not appear, in my view, to relate to the merits of whether the correct and preferable decision is to grant or refuse the AEP. However this is not a matter to be decided in this application but would be a matter for determination upon the substantive application for review. The merit threshold in these proceedings is quite low.
[41] In my view the Applicants have not demonstrated that there are overwhelming merits to the review. However they have demonstrated that there is an arguable case or at least that the grounds for review are not hopeless.
Interests of Justice
[42] The Tribunal is required to assess whether overall “it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination”.[16]
[16] CMC v Chapman and Or [2011] QCAT 229.
[43] This involves a balancing of the interests of the parties. Some of these factors are in favour of an extension and some are not.
[44] Piervale relies upon the decision of Hi Kari Pty Ltd t/a Ross Island Hotel v Chief Executive, Liquor Licensing & Hedley Group Pty Ltd[17] to establish the mandatory nature of the wording in section 61(3) of the QCAT Act for the proposition that an extension can not be granted if the Tribunal is of the view that:
a)the extension of time would cause prejudice or detriment;
b)that prejudice or detriment is not able to be remedied by an order for costs or damages.
[17] [2005] QCCTL 5.
[45] I accept the mandatory nature of section 61(3) of the QCAT Act.
[46] In the Hi Kari case Member Spender decided that the CCT had no power to award damages to any party in review proceedings having regard to the powers set out in section 104 of the CCT Act. Those powers are similar to the powers found in section 22 of the QCAT Act. Piervale submits that the Tribunal may not have power to award damages.
[47] Member Spender found that awarding costs of defending the review would not address the economic loss which the party was liable to suffer if the approval was overturned as a result of the review and refused an extension of time.
[48] I find that awarding Piervale its costs of defending the review would not address the economic loss which it is likely to suffer if the AEP is set aside.
[49] Piervale submits that if the Tribunal has power to award damages in such a proceeding there is no evidence of the Applicants’ ability or willingness to pay damages.
[50] The Applicants contend that there is no evidence that the Applicants do not have the capacity to pay damages and that the fact that the Applicants did not pursue their stay applications hugely reduces Piervale’s possible losses because Piervale can commence to trade once final approval is secured and thereby start recovering a return on its investment.
[51] Section 21 of the Liquor Act 1992 and section 22 of the QCAT Act set out the jurisdiction of the Tribunal. The Tribunal does not appear to have jurisdiction to award damages in relation to such a review application. The order that can be made under section 24 of the QCAT Act does not include the award of damages.
[52] In these circumstances I find that Piervale’s prejudice would not be able to be remedied by an appropriate order for damages.
[53] I am not satisfied that the requirements of section 61(3) of the QCAT Act to permit an extension of time have been met by the Applicants.
[54] In any event I find that it is not in the interests of justice to grant the applications for extension of time given the significant delay in bringing the applications, the need for certainty and in particular the significant expenditure incurred by Piervale since the appeal period expired.
Standing
[55] Piervale contends that Mr Gardener’s extension of time application and application to review ought to be dismissed in any event as Mr Gardener does not have standing to seek a review of the decision because he did not make a valid objection.
[56] Firstly it is submitted that he was not a member of the public[18].
[18] Section 119(1) & 119(5) Liquor Act 1992.
[57] Secondly it is submitted that the petition, of which Mr Gardener was the sponsor, did not comply with the requirements of the Liquor Act 1992[19] and was therefore ineffective.
[19] Section 120 Liquor Act 1992.
[58] A member of the public may object individually or by petition.[20]
[20] Section 119(2) Liquor Act 1992.
[59] Such a person is required to have a proper interest in the locality and be likely to be affected by the grant of the application.[21]
[21] Section 119(5) Liquor Act 1992.
[60] The issue of Mr Gardener’s standing had been raised by Piervale during the permit application process. Mr Gardener did not address this issue in much detail until he gave evidence shortly before the hearing of this application[22] where he gave evidence that:
a)he is a consultant to a range of business owners in the Caxton Street precinct;
b)he entertains clients, including clients from other parts of the State, within the locality;
c)if his clients’ businesses in the locality are adversely affected by a change within the precinct his business will be adversely affected.
[22] Affidavit Howard Mark Gardener sworn 6 October 2011.
[61] The nature of the affect of the grant on Mr Gardener appears to be a financial affect.
[62] Member Spender in the Hi Kari case endorsed the views of the former Liquor Appeals Tribunal in Liquorland et Ors v Chief Executive[23] that the grounds for objection in section 119 of the Liquor Act 1992 relate to physical rather than commercial impacts although the physical impact may have a secondary economic effect.
[23] Liquor Appeals Tribunal, 23 February 2000.
[63] There is no evidence as to the likely physical impact upon Mr Gardener’s business.
[64] Even upon Mr Gardener’s evidence his connection to the locality is very limited.
[65] I am not satisfied that he is a member of the public for the purposes of section 119 of the Liquor Act 1992 because I am not satisfied he is likely to be affected.
[66] If I am wrong in finding Mr Gardener is not a member of the public Piervale contends that he is not a person entitled to apply for a review of the decision[24] because he did not make an effective objection.
[24] Section 30 Liquor Act 1992.
[67] Piervale’s submission is that the petition he sponsored did not comply with the requirements of the Liquor Act 1992 and was therefore ineffective whether or not the Chief Executive chose to consider the petition.
[68] Section 120 of the Liquor Act 1992 sets out the requirements for an effective petition. There are 3 requirements:
a)Each sheet is to have an identical heading clearly stating the subject matter of the petition and positioned to be clearly legible to every person whose signature is sought.[25]
b)Each signatory is to state particulars of connection to the locality.[26]
c)Each sheet is to state the name of the sponsor.[27]
[25] Section 120(1)(a) Liquor Act 1992.
[26] Section 120(1)(b) Liquor Act 1992.
[27] Section 120(1)(c) Liquor Act 1992.
[69] It is evident from a review of the petition[28] there was not strict compliance with these requirements.
[28] Book of Documents p336-395.
[70] Mr Gardener says in relation to the non-compliance with the first and third of the requirements that it was brought about by a formatting error causing the footer to move on to the following page and that in view of his evidence that he ensured each signatory was aware of the contents of the heading that the Tribunal should exercise its powers to waive technical requirements.[29]
[29] Section 61 QCAT Act.
[71] The purpose of the requirements appear to be so that the Chief Executive can form a view about the level of information available to each signatory and therefore the level of valid objections without the need for supplementary evidence. I am not satisfied that the Tribunal should exercise its powers to waive the non-compliance.
[72] I therefore find that Mr Gardener did not make an effective objection and does not therefore have standing to bring the review application.
[73] Mr Gardener's applications ought to be dismissed for lack of standing.
Orders
The applications for extensions of time are dismissed.
The applications to review are dismissed.
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