Hill-Mac Pty Ltd v Chief Executive, Office of Liquor & Gaming Regulation
[2013] QCAT 81
•15 February 2013
| CITATION: | Hill-Mac Pty Ltd v Chief Executive, Office of Liquor & Gaming Regulation [2013] QCAT 81 |
| PARTIES: | Hill-Mac Pty Ltd (Applicant) |
| v | |
| Chief Executive, Office of Liquor & Gaming Regulation (Respondent) |
| APPLICATION NUMBER: | GAR358-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 28 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kenneth Barlow SC, Member |
| DELIVERED ON: | 15 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Tribunal orders that: 1. No. 2. No. 3. No. 4. No. 5. (a) It is a requirement, for a disciplinary action based on grounds in section 136(1)(h)(ii) of the Liquor Act1992 for instances of “disorderly conduct in, or in the neighbourhood of, the premises”, to identify instances which occurred on a continual or repeated basis up to and including a period at or about the time the decision was made; however, the questions whether the disorderly conduct is occurring on a sufficiently continual or repeated basis, and whether it is occurring sufficiently contemporaneously with the decision, are questions of fact to be determined in each case. (b) It is not a requirement for such a disciplinary action to identify actions or omissions of the licensee in the course of its use of the licensed premises, or affecting or relating to the behaviour of persons entering or leaving the premises, which acts or omissions were the cause of that conduct. |
| CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Liquor – Obligations of licensees and permittees – Control of premises – Queensland – Disciplinary action – Whether Chief Executive must identify conduct of licensee causing the circumstances that may lead to disciplinary action – Whether disorderly conduct must occur repeatedly or continually to constitute a ground for disciplinary action Liquor Act1992, ss 136(1)(a), 136(1)(h), 148A(4) Ash Allen Motors (1972) Ltd v Colin Cotter Motors Ltd [1977] 1 NZLR 146 |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Mr G J Gibson QC and Mr S Fynes-Clinton of Counsel, instructed by Mullins Lawyers |
| RESPONDENT: | Mr A D Scott of Counsel |
REASONS FOR DECISION
Introduction
The applicant is a licensee of the Alexandra Hills Hotel-Motel, which are licensed premises under the Liquor Act1992. By this application, it seeks review of a decision by the respondent, under s 137A of that Act, to take disciplinary action against the applicant.
The decision of the Chief Executive was to impose on the applicant a monetary penalty of $10,000 on each of two grounds for taking disciplinary action, and to impose additional conditions on the applicant’s licence. The conditions were essentially directed to providing greater security in and around the premises. The grounds concerned were:
a) that the applicant failed to comply with the Act, contrary to s 136(1)(a)(i), because it did not provide and maintain a safe environment in and around the premises (which it was obliged to do by s 148A(4)); and
b) that the use of the premises, or the behaviour of persons entering or leaving the premises, was causing disorderly conduct in, or in the neighbourhood of, the premises, contrary to s 136(1)(h)(ii).
In making the decision, the Chief Executive relied on a large number of alleged incidents at or around the premises of the hotel over a period of more than 2½ years, in which customers or other persons were injured, or caused disturbances. The decision did not state that the applicant had, or had not, taken any steps that led or contributed to each incident.
On 22 August 2012, the Tribunal directed that 5 preliminary questions of law be listed for determination. At the hearing of submissions concerning those questions on 28 November 2012, I directed that 2 of the questions be amended. The questions, as amended (and correcting some apparent typographical errors in question 5 as originally drawn), are:
1.Pursuant to Part 5, Division 3, Subdivision 3 of the Liquor Act 1992, is it a requirement for disciplinary action based on grounds in section 136(1)(a)(i), namely a contravention of section 148A(4) of the Liquor Act 1992, that one or both of the following be identified for each incident:
(a)actions taken by the licensee; or
(b)actions omitted to be taken by the licensee,
the doing of which act or the making of which omission by the licensee has resulted in a contravention of s148A(4)?
2.Further to the extent that the Tribunal finds it necessary to consider the issue in determining question (1) – on the proper construction of ss 136(1)(a)(i) and 148A(4) of the Liquor Act 1992, is the Tribunal bound to find, upon reconsideration of the evidence before the Chief Executive when the decision was made, that there was no circumstance justifying the taking of disciplinary action against the Applicant based on an asserted contravention of s 148A(4), because there is no part of that evidence which identifies one or more:
(a)actions taken by the licensee; or
(b)actions omitted to be taken by the licensee,
the doing of which act or the making of which omission by the licensee has resulted in a contravention of s 148A(4)?
3.Pursuant to Part 5, Division 3, Subdivision 3 of the Liquor Act 1992, is it a requirement for disciplinary action based on grounds in section 136(1)(h)(ii) of the Liquor Act 1992 that one or both of the following be identified for each incident:
(a)actions taken by the licensee; or
(b)actions omitted to be taken by the licensee,
the doing of which act or the making of which omission by the licensee has caused the circumstances described in s 136(1)(h)(ii)?
4.Further to the extent that the Tribunal finds it necessary to consider the issue in determining question (3) – on the proper construction of s 136(1)(h)(ii) of the Liquor Act 1992, is the Tribunal bound to find, upon reconsideration of the evidence before the Chief Executive when the decision was made, that there was no circumstance justifying the taking of disciplinary action against the Applicant based on the circumstance stated in s 136(1)(h)(ii), because there is no part of that evidence which identifies one or more:
(a)actions taken by the licensee; or
(b)actions omitted to be taken by the licensee,
the doing of which act or the making of which omission by the licensee has caused the circumstance described in s 136(1)(h)(ii)?
5.Is it a requirement, for a disciplinary action based on grounds in section 136(1)(h)(ii) of the Liquor Act 1992 for instances of “disorderly conduct in, or in the neighbourhood of, the premises”, to identify instances which occurred on a continuous or repeated basis at or about the time the decision was made, and actions or omissions of the licensee in the course of its “use of the licensed premises” or affecting or relating to “the behaviour of persons entering or leaving the premises”, which acts or omissions were the cause of that conduct?
The nub of the issues raised by the questions, as put by Mr Gibson QC for the applicant, is whether the provisions of the Act concerning the taking of disciplinary action, on which the Chief Executive relied, impose strict liability on a licensee if there has in fact been an incident of disorderly conduct or an unsafe environment, or whether the Chief Executive must identify some form of conduct by the licensee (either taking some step or omitting to do something that it should have done) resulting in the disorderly conduct or unsafe environment, in order to trigger liability in the licensee for breach of the Act.
The parties’ submissions: questions 1 to 4
I have been greatly assisted by comprehensive written and oral submissions on behalf of both parties, for which I am grateful. I shall attempt to do them justice in summarising them, although they were far more extensive than my summary indicates.
The applicant submitted that disciplinary action is a means to an end. It is punitive, constitutes a deterrent and should be corrective and educative: that is, it is designed to induce a change in behaviour of the person disciplined (and others) and to give instruction about what constitutes acceptable behaviour. It does not involve punishment without fault. Therefore, if disciplinary action is to be taken, it must be as a result of inadequate behaviour of the licensee that has led to the prohibited event. Punishment without fault is anathema to fundamental concepts of the rule of law and natural justice, and such an intent should not be imputed to the legislature without clear language, which is not evident in this Act. Therefore, it is only where conduct or inaction on the part of the licensee has contributed to or caused the disorderly conduct or unsafe environment that the licensee is amenable to disciplinary action. Consequently, in order to take disciplinary action, the Chief Executive must identify some action or inaction on the part of the licensee that led to, or caused (or, I would interpolate, perhaps failed to prevent), the disorderly conduct or the unsafe environment.
The applicant relied substantially on the High Court’s decision in Kirk v Industrial Relations Commission of New South Wales[1] as analogous with the provisions in this case. The respondent contended that that decision, and others relied on by the applicant, concerned the particular provisions of the statutes concerned, which are not on all fours with the provisions with which this application is concerned, and do not stand for any applicable principles.
[1](2010) 239 CLR 531.
The applicant also submitted that a breach of each provision can lead to a penalty and is, or is akin to, a criminal offence. In those circumstances, it is only in the clearest of cases that a statute should be construed as imposing strict liability on a person for a state of affairs, and this Act is far from clearly imposing such liability on licensees. On the contrary, it would be oppressive to conclude that it imposes a risk of disciplinary action without any consideration of the licensee’s conduct. Such an oppressive result, while possible, would not be the intention of Parliament unless expressed in the clearest terms, which it is not.
The respondent submitted that discipline is not just a means to an end comprising a change in behaviour; the purpose of the Act, and of these particular obligations, is protective of the community (in accordance with the main purposes of the Act identified in s 3(a)(i) and (iii)), rather than punitive of the licensee. Furthermore, the words of the sections are clear in setting out the grounds on which disciplinary action may be taken: namely, the existence of the circumstances described in those sections. There is no requirement that those circumstances be shown to have been caused or contributed to by the licensee’s acts or omissions. In contrast to these provisions, other obligations are expressed in terms that the licensee must take reasonable steps to ensure certain things: eg, ss 155AB and 155AD. Therefore, there is no need to identify conduct of the licensee in order to establish a breach of the environmental and behavioural requirements imposed by the Act and, once established, to discipline the licensee.
The respondent also submitted that the provisions ought be understood in the context of the Act as a whole. Mr Scott gave, as an example, that one factor that the Chief Executive must consider, in deciding whether to grant an extended trading hours approval, is the ability of the licensee to control the noise and behaviour of persons who could reasonably be expected to be on and in the vicinity of the premises: s 121(1)(g)(ii). He submitted that the fact that the Chief Executive must take that into account is indicative that Parliament considers there to be an obligation on a licensee to control behaviour of patrons, a breach of which may lead to disciplinary action.
Consideration of questions 1 to 4
There was debate, in the parties’ submissions, about whether the object of disciplinary action, generally and under the Act, is punitive or protective, and therefore whether it is determined by reference to conduct of the licensee or a state of affairs at and around licensed premises. In particular, the respondent submitted that the purpose of the provisions was clearly protective of the public, and therefore it was not necessary that a licensee’s conduct was clearly the cause of a prohibited situation: Parliament intended that one consequence of having a liquor licence is that the licensee is responsible for the behaviour of persons, and for the safety of the environment, in and around licensed premises. Reference was made to a number of cases in the course of this debate.[2]
[2]For example, Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, Preston v Commissioner of Fair Trading (2011) 80 NSWLR 359, and Filippini v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2009] 1 Qd R 230.
I do not consider the debate, or the respondent’s attempt to categorise the provisions in a particular way, to be helpful. It seems to me that the provisions in this Act concerning disciplinary action meet all the objects identified by the parties, and it does not assist in determining whether any one or more have greater prominence in the construction of these provisions. Indeed, as the High Court plurality said in Rich v Australian Securities and Investments Commission[3] (at [32] and [33]), the supposed distinction between “punitive” and “protective” is elusive and inconsistent with decided principle.
[3] (2004) 220 CLR 129.
Similarly, I did not find cases such as Kirk particularly helpful. They dealt with different legislation and entirely different statutory schemes. Indeed, even the Supreme Court of Queensland has distinguished the Workplace Health and Safety legislation considered in Kirk from similar legislation in Queensland, leading to a different conclusion as to the necessary content of a complaint in a prosecution for breach of the Queensland Act.[4] In that case Boddice J held that the offence of failure to discharge the obligation to ensure the health and safety of a person in a workplace was complete when a person suffers an injury to their health and safety in the workplace, subject to any applicable defences. Likewise, the Court of Appeal’s decision in Hardy v St Vincent’s Hospital Toowoomba Ltd,[5] which was relied on by the applicant for the proposition that the duty imposed by s 148A(4) is breached only if an unsafe environment exists which could by some means have been prevented by the licensee, is of no assistance because the duty imposed by the legislation under consideration in that case was to ensure a condition “except where it is not practicable for the employer to do so”. There is no such limitation expressed in s 148A(4).
[4]NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373, at [16].
[5][2000] 2 Qd R 19, at 21.
As in most cases of statutory construction, the correct approach is, first, to consider the words of the provisions, in the contexts of the part of the Act in which they appear and of the Act as a whole. In the words of the applicant’s submission (with which I understood the respondent to agree):
a) the starting point is the ordinary meaning of the words used by Parliament;
b) legislation must nevertheless be construed in its context, which requires the adoption of an interpretation most consistent with the objects and purposes of the relevant legislation and which, so far as possible, avoids inconvenient or improbable outcomes which are not consistent with the evident legislative intent;
c) these principles are consistent with the command in s 14A(1) of the Acts Interpretation Act 1954 to adopt the interpretation that will best achieve the purpose of the Act in preference to any other interpretation.
Section 136 relevantly provides:
(1)Each of the following is a ground for taking disciplinary action relating to a licence –
(a)the licensee has failed to –
(i)comply with this Act; or
…
(h)the use of the licensed premises, or the behaviour of persons entering or leaving the premises –
…
(ii)is causing disorderly conduct in, or in the neighbourhood of, the premises.
…
Section 148A relevantly provides:
(1)This section imposes obligations on licensees … in the conduct of business on licensed premises … for –
(a)maintaining a safe environment for patrons and staff of the premises; and
(b)ensuring liquor is served, supplied and promoted in a way that is compatible with minimising harm from the use of liquor and preserving the peace and good order of the neighbourhood of the premises.
…
(4)The licensee … must provide and maintain a safe environment in and around the premises.
Maximum penalty – 100 penalty units
Dealing first with s 136(1)(h), there is no reference to conduct of the licensee (except indirectly, to the extent that the use of the premises is by the licensee) as a necessary element of a ground for taking disciplinary action. Indeed, one element of the ground relies entirely on the conduct of persons other than the licensee: that is, the behaviour of persons entering or leaving the premises. The question the paragraph poses is whether either the use of the premises or the behaviour of those persons is causing disorderly conduct (an interesting question, which it is unnecessary for me to answer, is whether behaviour “causing” disorderly conduct is separate and distinct from behaviour constituting such conduct.)
Certainly it may be harsh, in some instances, for a licensee to be liable to possible disciplinary action where the behaviour of patrons has caused disorderly conduct in circumstances where the licensee could not have anticipated, nor done anything to prevent, the behaviour or the conduct. But it seems to me that Parliament has clearly decided to make the licensee responsible, not only for the use of the premises, but also for patrons’ behaviour. While speculative, this may well be because a frequent side effect of consuming alcohol is poor behaviour. But the harshness of liability in certain circumstances is a matter appropriately taken into account by the Chief Executive in deciding whether to take disciplinary action and, if so, in determining the action to be taken.
Similarly, s 148A(4) imposes an obligation on a licensee, in the conduct of its business on the premises, to provide and maintain a safe environment in and around licensed premises. The obligation is not limited to using the licensee’s best endeavours, or taking reasonable steps, to provide and maintain such an environment. Notably, though, the obligation is not to ensure the safety of patrons and neighbours, but to provide and maintain a particular “environment”. When an unsafe incident occurs, it may or may not be the case that the environment in which it occurred was not safe. To determine that issue would require consideration of all the circumstances in which the incident occurred, including what was happening around it, and what the licensee was or was not doing to provide and maintain a safe environment. Notwithstanding a safe environment, incidents can occur for which a licensee will not be subject to disciplinary action. But if the environment was unsafe at the time, then the licensee has failed in its duty.
Even that test is subject to whether the provision and maintenance of a safe environment is “in the conduct of business on licensed premises.” One might envisage an unsafe environment around the premises that arose from circumstances entirely divorced from the conduct of the licensee’s business on the premises: for example, if a riot developed outside premises arising from a political demonstration having nothing to do with the business. That would be unlikely to amount to a failure by the licensee to provide and maintain a safe environment in the conduct of its business, even if some of its patrons joined in the riot.
Given this construction of the provisions, in determining whether an environment may be unsafe or the use of the premises or the behaviour of patrons is causing disorderly conduct, it is open to the Chief Executive to rely on the facts of one or more unsafe or disorderly incidents in or around the premises as evidence that the licensee has not met its obligations under these sections. Even if it would have been impossible for the licensee to prevent the development of an unsafe environment or disorderly conduct, the Act imposes an obligation (under s 148A) and liability to disciplinary action (under s 136(1)(1)(a)(i) and (h)) on the licensee. The impossibility would, however, be relevant to the exercise of the discretions whether to take disciplinary action and, if so, what action.
There is nothing in the Act or these particular provisions, nor in any general principles of law, that alters the meaning of the clear words of the sections. On the contrary, in my view the construction I have adopted is both clear on those words and consistent with the purpose of the Act set out in s 3(a).
I do not accept that this means that Parliament has decided to impose liability to discipline without fault, in a manner that is anathema to the rule of law. The applicant noted that, in an earlier case involving discipline for breach of s148A(4),[6] the Commercial and Consumer Tribunal drew the inference that a series of serious violent incidents at the premises was evidence of inadequate management practices on the part of the licensee. Indeed, the tribunal said,
… [t]he totality of the evidence amply demonstrates that a large number of patrons have been served alcohol when the responsible service of alcohol demanded that they not be served. The anti-social behaviour which is evidenced in the incident reports and court briefs is of a kind which occurs when a person is unduly intoxicated.
[6]Revestar Pty Ltd v The Chief Executive, Liquor Licensing Division [2008] QCCTL 12, especially at [36]-[37].
The words of the provisions, which are direct and unambiguous, indicate that Parliament took a similar view: if there is disorderly conduct by patrons of licensed premises, or if the environment in or around the premises is unsafe, it is likely to be a result of inadequate management practices, particularly the service of alcohol to already intoxicated persons. It is unsurprising that such a view might be formed or that Parliament considered an appropriate remedy to be to impose a form of liability to disciplinary action that imputes that the conditions or behaviour were caused by the licensee’s conduct of its business. In fact, it specifically provided that such action could include (as it did in this case) the imposition of penalties and changes to the conditions of the licence, no doubt intended to be designed to improve the licensee’s ability to prevent further breaches of the relevant provisions. In that sense, the disciplinary action provided by the Act is punitive, deterrent, corrective and educative, thus meeting the ends which, as the applicant submitted, disciplinary action should be designed to meet. I might add that it could also be seen to be protective of the public and the public interest.
I therefore consider that the answers to questions 1 to 4 are:
1.No;
2.No;
3.No;
4.No.
The parties’ submissions: question 5
In their submissions on question 5, the parties treated it as relating to the timing and frequency of incidents of disorderly conduct: that is, whether the provision would apply to a single incident, or whether it applies only to an ongoing or repeated state of affairs, and whether an incident or series of incidents must have occurred shortly before the decision on disciplinary action was made.
In fact, question 5 incorporates 3 elements, namely:
a) whether it is necessary to identify instances of disorderly conduct which occurred on a continuous or repeated basis;
b) whether the instance or instances of disorderly conduct must have occurred at or about the time of the decision; and
c) whether it is also necessary to identify actions or omissions of the licensee in the course of its use of the licensed premises or affecting or relating to the behaviour of persons entering or leaving the premises, which acts or omissions were the cause of that conduct.
The first and second elements involve criteria of number and time of incidents. The third element appears to be similar or identical to the issue raised in question 3. This was accepted by the parties, who addressed only the temporal and quantitative elements of the provision, treating the third element as having been dealt with in their submissions on question 3. That appears to me to be the correct approach, so I shall now deal only with the first and second elements identified above. The answer to the third element is “No”, in accordance with my reasons and conclusion concerning question 3.
As to the first element, the applicant submitted that the statutory language “is causing disorderly conduct” connotes something other than a single event. If it was intended to include a single event, the provision would have said “is causing or has caused” instead of simply “is causing”. The use of the present tense connotes an ongoing or repetitive state of affairs by which a pattern of conduct is occurring, and one of the identified matters is causing that state of affairs. Furthermore, the incidents that comprise the state of affairs must not be separate instances of disorderly conduct separated by a substantial time period and that do not reflect a continuous or repeated pattern. As to the second element, the applicant submitted that the use of the present tense dictated that the state of affairs must be continuing at about the time when the Chief Executive institutes disciplinary action, although in reply it denied making any submission to the effect that the power to take disciplinary action could only be exercised at the very moment that ground for discipline arose.
The respondent submitted that the use of the present tense is merely a reference to the point in time at which the ground for disciplinary action arose. It is unlikely that Parliament intended that the power to take disciplinary action could only be exercised at the moment the ground for that action arose – indeed, that would be impossible. Nor does the section require that the relevant disorderly conduct be part of a continuous or repeated pattern. While the frequency and timing of the conduct might be relevant to the discretion as to the particular disciplinary action taken, it does not affect the existence of the power to take that action, which is enlivened upon the existence of circumstances provided in that paragraph of the Act.
Consideration of question 5
The dispute between the parties arises from the use of the present tense in s 136((1)(h)(ii). Obviously the tense used in a statutory provision is a guide to the proper construction of the provision, but it must be construed having regard to common uses of the tense concerned (and, if relevant by contrast, of other tenses). For example, the use of the past participle in an Act is not necessarily intended to limit the matter with which the section is concerned to past matters: it may be neutral in temporal meaning and apply equally to the future or the present as to the past.[7]
[7]Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617, per Stephen J at 661; Suntory (Aust) Pty Ltd v Federal Commissioner of Taxation (2009) 177 FCR 140 at [37]; OV and OW v Members of the Board of the Wesley Mission Council (2010) 270 ALR 542 at [35]-[36].
In my opinion, the use of the present tense imports a notion of continuing or repeated conduct over a period of time, rather than an isolated incident. If, therefore, on one occasion disorderly conduct occurred in, or in the neighbourhood of, licensed premises, but it did not recur at all, then this provision would not apply and the licensee would not be liable to disciplinary action. If, however, disorderly conduct occurred numerous occasions over a period of time as a result of the use of the licensed premises or the behaviour of persons entering or leaving them, then in the common use of the tense, an observer would say that that use or behaviour is causing disorderly conduct.
Of course, during an isolated incident of disorderly conduct, one might say the same. But once the incident is over, and if it is not repeated, one would say that it caused, or has caused, that conduct on that occasion, but it is no longer doing so. In such a case, it seems to me that the section would not apply. In this respect I agree with the applicant’s submission that, if Parliament had intended the provision to apply to one incident only, it would have used the phrase “has caused” rather than, or in addition to, “is causing”.[8]
[8]A similar conclusion was reached by the Privy Council in Maradana Mosque (Board of Trustees) v Mahmud [1967] 1 AC 13, at 25.
There is, therefore, a necessary element of repetition of disorderly conduct, as a result of one or both of the 2 listed sources of that conduct, involved in a breach of s 136(1)(h)(ii). Whether the extent and period of repetition is such that one might say that the source “is causing” it will be a matter of fact to be determined in each case.
The second element of question 5 is whether the disorderly conduct must be occurring at or about the time the decision to take disciplinary action is taken. The applicant contends that the present tense indicates that this must be the case, although it concedes that it does not have to be occurring at the instant that the decision is made.
The use of the present tense does indicate a temporal connection with the decision to start the disciplinary action process (by this I am referring to the decision to give a notice under s 137(1), not the decision under s 137A). But it does not indicate clearly the necessary degree of temporal connection.
In some cases, the use of the present tense in a statute has been held to negate reference to the past.[9] However, in other cases it has been held to refer to events over a period of time.[10]
[9]For example, Maradana Mosque (Board of Trustees) v Mahmud; Inland Revenue Commissioners v Bebb Travel plc [2003] 3 All ER 546.
[10]For example, Ash Allen Motors (1972) Ltd v Colin Cotter Motors Ltd [1977] 1 NZLR 146 at 150-151; and in Maradana Mosque, at 25, the Privy Council allowed that continuous behaviour over a period of time contrary to the Act may amount to a present breach of the Act:
In my opinion, the temporal connection required by s 136(1)(h)(ii) does not have to be immediate, in the sense that the disorderly conduct is occurring at the time of the decision, but there must be a sufficiently close proximity in time, between at least the later incidents of disorderly conduct and the decision, to allow for the proposition that it is continuing and appears likely to be repeated again in the foreseeable future, as part of the series or pattern (if it can be called that) of behaviour in, or in the neighbourhood of, the licensed premises. However, this does not exclude consideration of a series of incidents over a period of time extending long before the date of the decision.
Again, the degree of contemporaneity required will depend on the evidence in each case. But if there have been many instances of disorderly conduct over a period of time (even a period of some years), with the latest incidents occurring reasonably soon before disciplinary action is being considered, then it is open to the Chief Executive to consider that there is a ground to take disciplinary action under s 136(1)(h)(ii).
My answers to question 5 are therefore:
5.(a) It is a requirement, for a disciplinary action based on grounds in section 136(1)(h)(ii) of the Liquor Act 1992 for instances of “disorderly conduct in, or in the neighbourhood of, the premises”, to identify instances which occurred on a continual or repeated basis up to and including a period at or about the time the decision was made; however, the questions whether the disorderly conduct is occurring on a sufficiently continual or repeated basis, and whether it is occurring sufficiently contemporaneously with the decision, are questions of fact to be determined in each case.
(b) It is not a requirement for such a disciplinary action to identify actions or omissions of the licensee in the course of its use of the licensed premises or affecting or relating to the behaviour of persons entering or leaving the premises, which acts or omissions were the cause of that conduct.
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