Holey Moley v Chief Commissioner of Police
[2021] VSC 709
•28 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00214
| HOLEY MOLEY AUSTRALIA PTY LTD (ACN 613 584 571) | First Plaintiff |
| ARCHIE BROS AUSTRALIA PTY LTD (ACN 321 886 922) | Second Plaintiff |
| v | |
| CHIEF COMMISSIONER OF POLICE | First Defendant |
| VICTORIAN COMMISSION FOR GAMBLING AND LIQUOR REGULATION | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 28 October 2021 |
CASE MAY BE CITED AS: | Holey Moley v Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2021] VSC 709 |
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JUDICIAL REVIEW – Consent orders sought – Police Commissioner sought variation of plaintiffs’ licences – Licences contained approval for minors to be on licensed premises – Whether Chief Commissioner’s application was an application seeking variations under s 29 of the Liquor Control Reform Act 1998 – Appropriate to make declarations sought – Liquor Control Reform Act 1998 ss 29(1), (2), 120(2)(e).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | BSP Lawyers | |
| For the First Defendant | Victorian Government Solicitor | |
| For the Second Defendant | Solicitor, Victorian Commission for Gambling and Liquor Regulation |
HIS HONOUR:
Introduction
The plaintiffs seek judicial review of the Chief Commissioner’s applications to the Victorian Commission for Gambling and Liquor Regulation (‘the Commission’) to vary licences held by them. The variations sought were to remove approvals granted by the Commission to allow minors to be present on licensed premises.
The parties seek orders by consent to resolve the proceeding.
The parties jointly provided a memorandum to the Court to set out the legal basis for their draft minutes of consent orders to resolve this proceeding, in accordance with paragraph [8.1] of the Practice Note SC CL 9 Judicial Review and Appeals List, namely an order in the following terms:
The Court declares that each of the following, provided by the Chief Commissioner of Police to the Victorian Commission for Gambling and Liquor Regulation on 11 February 2020, was not made under s 29 of the Liquor Control Reform Act 1998 (Vic):
a. application to vary licence no. 32351897 for the venue “Holey Moley (Crown)” (held by the First Plaintiff)
b.application to vary licence no. 32276160 “Holey Moley (Frankston)” (held by the First Plaintiff)
c.application to vary licence no. 32280371 for “B.Lucky & Sons (Melbourne Central)” (held by the Second Plaintiff)
d.application to vary licence no. 32347911 for “Archie Brothers Cirque Electriq (Docklands)” (held by the Second Plaintiff).
The Court is required in the exercise of its judicial review powers to decide whether the consent orders are appropriate to be made. I considered that the consent orders were appropriate and made orders in the terms sought on 8 October 2021. I set out below my reasons for making the orders in which I substantially repeat the contents of the parties’ joint memorandum.
Factual Background
Following requests by the plaintiffs, who hold licences for venues at Crown, Melbourne Central, Docklands and Frankston, for the grant of approvals under s 120(2) of the Liquor Control Reform Act 1998 (‘the Act’) to allow minors on premises, on various dates between October 2018 and July 2019,[1] the Commission granted approval under s 120(2)(e) of the Act for persons under the age of 18 years to be on the licensed premises during specified hours (‘the Initial Approvals’).
[1]The Commission granted its approval: for B Lucky & Sons, on 13 February 2019; for Archie Brothers Cirque Electriq, on 24 October 2018; for Holey Moley (Crown), on 9 May 2019 and for Holey Moley (Frankston), on 11 July 2019.
On 11 February 2020, the Chief Commissioner lodged with the Commission the following:
(a) application to vary licence no. 32351897 for the venue “Holey Moley (Crown)” (held by the first plaintiff)[2]
[2]Exhibit MPE-1 to the affidavit of Matthew Elefanty dated 30 April 2021 – ‘First Affidavit’.
(b) application to vary licence no. 32276160 “Holey Moley (Frankston)” (held by the first plaintiff)[3]
(c) application to vary licence no. 32280371 for “B.Lucky & Sons (Melbourne Central)” (held by the second plaintiff)[4]
(d) application to vary licence no. 32347911 for “Archie Brothers Cirque Electriq (Docklands)” (held by the second plaintiff).[5]
[3]First Affidavit, Exhibit MPE-2.
[4]First Affidavit, Exhibit MPE-3.
[5]First Affidavit, Exhibit MPE-4.
As a matter of fact, each of those applications purported to be an application under s 29 of the Act to vary the relevant licence to remove the relevant Initial Approval.
On 2 February 2021, the plaintiffs commenced this proceeding, seeking a permanent stay of proceedings before the Commission on a ground of abuse of process and a declaration ‘that the revocation of existing approvals granted by the second defendant under s 120(2)(e) of the [Act] is not within the scope of applications which may be made under s 29 of that Act.’
On 3 June 2021, the Chief Commissioner wrote to the plaintiffs accepting that the proceeding in the Commission should proceed on the basis of its power to revoke an approval under s 120(2)(e) of the Act, and not as a variation application under s 29 of the Act, and made an open offer to settle the proceeding. The offer was not accepted.
The parties then filed written submissions. While various issues remained unresolved, the parties agreed that the purported applications had not, as a matter of law, been made under s 29 of the Act.
The parties agreed that a declaration to that effect would have utility. The Chief Commissioner will pursue his requests that the Initial Approvals be revoked, but the declaration will make it clear to the Chief Commissioner and the Commission that the requests are not made under s 29 of the Act. This will have consequences for the manner in which the Commission approaches those requests.
The plaintiffs do not otherwise pursue the relief sought in the Originating Motion, on the basis that the terms of the agreed declaration will dispense with the underlying process in relation to which that relief is sought.
On 30 September 2021, the parties agreed to resolve this proceeding and to jointly file a memorandum and draft minutes of consent orders for that purpose.
Legislative Framework
Part 8 of the Act, entitled ‘Offences and enforcement’, creates a number of offences relating to the supply and consumption of liquor.
The first offence in Part 8 is contained in s 107 (‘unlicensed selling of liquor’), which makes it an offence for a person who is not a licensee to sell liquor or offer liquor for sale:
(a) A ‘licensee’ is a holder of a ‘licence’ granted under the Act.
(b) Part 2 of the Act (‘licences and BYO permits’) sets out the various categories of licences that may be granted, and the conditions to which the particular licence is subject, and a procedure by which those licences may be varied.
Within Part 2, s 29 provides:
29 Application for variation of licence or BYO permit
(1) An application to the Commission for the variation of a licence or BYO permit may be made by—
(a) the licensee or permittee; or
(b) the Chief Commissioner or a licensing inspector; or
(c)the persons referred to in section 32(1)(a) or (b) in connection with an application for the transfer of the licence or permit.
(2) A variation of a licence or BYO permit may include—
(aa) a variation of the category of licence held by the licensee;
(a)a variation of the times outside ordinary trading hours at which the licence or permit authorises the supply of liquor;
(b)a variation of the size or perimeter of the licensed premises;
(c)a variation of a condition of the licence or permit (other than a condition imposed by this Act);
(d)the imposition of a new condition on the licence or permit;
(e)the removal of a condition of the licence or permit (other than a condition imposed by this Act).
Within Part 8, s 120(1)-(2) provides:
120 Allowing minors on licensed or authorised premises
(1) If a person under the age of 18 years —
(a)is on licensed premises or any authorised premises; and
(b)is not —
(i)in the company of a responsible adult; or
(ii)on the premises for the purpose of partaking of a meal; or
(iii)in the case of a licence under which accommodation is provided, a resident of those premises—
the licensee or permittee is guilty of an offence.
(2) Subsection (1) does not apply —
(a)to the presence on any part of the licensed premises or authorised premises of a person under the age of 18 years at any time at which —
(i)entertainment for or mainly for people under the age of 18 years is provided on that part of the premises in accordance with the approval of the Commission and any conditions to which that approval is subject; and
(ii)liquor is not supplied, consumed or made available on that part of the premises; or
(b)to the presence on licensed premises or authorised premises of a person who is engaged in a training program in hospitality or in training for the purposes of employment or work experience, if the person is so present in accordance with any conditions to which that program or training is subject; or
(ba)to the presence on any part of the licensed premises or authorised premises of a person under the age of 18 at which —
(i)a live music event is being held in accordance with notice given to the Commission in accordance with subsection (2B) and any conditions prescribed for the purposes of this section; and
(ii)liquor is not supplied, consumed or made available on that part of the premises; or
(c)to the presence on licensed premises or authorised premises of persons employed on the premises otherwise than in the supply of liquor; or
(ca)to the presence on licensed premises or authorised premises of a person who is employed to deliver packaged liquor for consumption off the premises to people of or over the age of 18 years and who is on the premises by reason of that employment; or
(d)to the presence during ordinary trading hours on licensed premises or authorised premises of a person under the age of 18 years if the licence in respect of the premises is —
(i)an on-premises licence where the permitted use of the licensed premises under the Planning and Environment Act 1987 is that of a restaurant; or
(ii)a restaurant and cafe licence; or
(e)to the presence on licensed premises or authorised premises of a person under the age of 18 years in accordance with the approval of the Commission and any conditions to which that approval is subject.
An approval given under s 120(2) is not the same as a condition on a licence granted under Part 2. Accordingly, the Chief Commissioner cannot, as a matter of law, apply to the Commission under s 29 of the Act to revoke an approval granted under s 120(2)(e).
The Commission does have power to revoke an approval granted under s 120(2)(e), under s 120 of the Act itself. It is unnecessary for the Court to determine whether that power derives from s 120 alone, or from s 120 read together with s 40(a) of the Interpretation of Legislation Act 1984, which is a matter of debate between the parties. That is because the parties agree that, whatever its source, the power to revoke an approval is not engaged by s 29.
Accordingly, while the applications by the Chief Commissioner purported in fact to be made under s 29 of the Act, they were not in law made under s 29 of the Act.
There is no provision of the Act providing the Chief Commissioner with the express right to make an application to the Commission for the revocation of an approval under s 120(2).
The parties agreed that it was appropriate for the further question whether the Commission can, or must, entertain a request for it to exercise power under s 120(2) to be determined as, and if, it arises following any decision of the Commission in response to such a request.
Conclusion
Having considered the parties’ submissions, I considered it appropriate to make the declarations that I made on 8 October 2021 to make clear that the applications by the Chief Commissioner to the Commission were not made under s 29 of the Act.
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