Gittos v Surfers Paradise Rock and Roll Café P/L

Surfers Paradise Rock and Roll Café P/L and its director, Mr Gittos, were charged with contravening Condition 114 of their adult entertainment permit issued under the Liquor Act 1992 (Qld). The condition required the approved area for adult entertainment to be fully enclosed in a way that prevents a person outside the area from seeing inside. The respondents were found guilty in the Magistrates Court and subsequently in the District Court, which led to an appeal to the Court of Appeal.

The key legal issue the Court of Appeal had to decide was whether the respondents had indeed failed to fully enclose the approved area in a way that "prevents" people outside from seeing inside. The Court considered whether the term "prevents" in Condition 114 of the permit required an absolute and total exclusion of visibility or whether it could be interpreted as requiring a reasonable or significant reduction in visibility. The Court needed to balance the regulatory intent behind the permit condition with the practicalities of enforcing such a stringent requirement.

The Court of Appeal concluded that the term "prevents" in Condition 114 should not be interpreted to mean an absolute and total exclusion of visibility. Instead, the Court held that the term could be interpreted to require a reasonable or significant reduction in the visibility of the approved area. The evidence showed that while there might have been some visibility, it was not to the extent that would warrant a finding of contravening the permit condition. Consequently, the Court allowed the appeal, set aside the previous orders of the District Court, and dismissed the appeal to that Court. The Court also ordered the respondents to pay the appellant’s costs of both the appeal to the District Court and this appeal.