Homett Pty Ltd v Registrar, Licensing Court of Appeal

[1992] QCA 66

IN THE COURT OF APPEAL	[1992] QCA 066
SUPREME COURT OF QUEENSLAND	Appeal No.50 of 1991
Before the Court of Appeal
The President Mr Justice McPherson Mr Justice Williams
BETWEEN:

HOMMETT PTY. LTD.

(Licensee) Appellant

- and -

THE REGISTRAR, LICENSING

COURT OF APPEAL Respondent

JUDGMENT OF THE COURT

Delivered the 14th day of April, 1992

This is an appeal from an order of the Licensing Court on 6 June 1991. The appellant was fined $5,000 and ordered to pay a further amount in respect of costs.

The appellant was the licensee of Magnums Restaurant,

Cairns, and the order was made in a proceeding in which the
appellant was required to show cause why its license should
not be forfeited following breaches of ss.47A and s.125AE of
the Liquor Act 1912-1985 as amended. In such a proceeding
the court also has the power to suspend the license
(subs.47B(2)) or to impose a fine not exceeding $5,000.00
(subs.47B(2A)). One of the appellant's complaints is that

the maximum fine was imposed.

There are a number of grounds in which the Licensing

Court can exercise its powers in such a proceeding,
including that the licensed premises have been conducted in
an improper manner (subs.47A(2)(d)) or that the licensee has
failed to comply with a condition to which the licensee is
subject pursuant to the Act (subs.47A(2)(g)). It was
accepted by both parties to the appeal that subs.125AE(1)
subjects the appellant's license to a condition in terms of
subs.125AE(2). Those sub-sections of s.125AE respectively
provide:

"125AE. Restrictions on sale and supply under

restaurant license of liquor.

(1) The authority given by a restaurant license to the

licensee to sell and supply liquor in the
restaurant specified in the license shall be

subject to the provisions of this section.

(2) Liquor may be sold or supplied in a licensed

restaurant -

(a) subject to the approval of the Commission
first had and obtained, to persons in a
reception area of the restaurant who intend
bona fide to partake of a meal in a dining
room of the restaurant or who have partaken
of a meal in such a dining room;

(b)  to persons seated at tables in a dining room of the restaurant who intend bona fide to partake of a meal therein;

(c)  to persons seated at tables in a dining room of the restaurant bona fide partaking of a meal therein.

and not otherwise:

Provided that liqueurs may be sold or supplied to persons seated at tables in a dining room of a licensed restaurant who have bona fide partaken of a meal therein.

Liquor served in a dining room or reception area
of a licensed restaurant pursuant to this
subsection may be served according as it is
sought, and liquor sold or supplied in a reception
to a person pursuant to this subsection may be
taken by him to the table in the dining room where

he intends to partake of a meal.

... ."

Judge Quirk, who constituted the Licensing Court, found

that on two separate occasions when the restaurant was
visited by Licensing Commission Inspectors, there was "...
little if anything at all in the way of a system to ensure
compliance with the relevant provisions ...". Although they
"... manifested no intention to dine ..." and were not "...
asked at all whether they held such an intention", on each
of those occasions the Inspectors purchased liquor "...
several times". Although his Honour made no further
findings, the evidence disclosed eight breaches and also
that on neither occasion were the tables in the restaurant
set for dining and that no meals were consumed in the
restaurant while the Inspectors were on the premises.
Indeed, it was asserted for the appellant in this Court that

the restaurant was not even providing meals at the times of

night at which the Inspectors were served with liquor.

The grounds stated in the notice by which the appellant

was required to show cause were:-

(i)  that the licensee is not a fit and proper person to hold a license;

(ii) that the licensed premises have been conducted in

an improper manner;

(iii) that the licensee has failed to comply with

conditions to which the license is subject

pursuant to section 125AE of the Liquor Act.

There is no suggestion that ground (1) was established.

The circumstances described by the Inspectors were relied

on as establishing both other grounds.

The appellant's submission is that breaches of s.125AE

are offences for which, by subs.125 AE(5), the licensee is
"... liable ... to be punished as prescribed by subs.3 of
s.129 of this Act." The relevant parts of subs.129(3)

provide:

"129(3) Any person who contravenes any provision of
section one hundred and twenty-seven of this Act or of
this section shall be guilty of an offence against this
Act and liable-

(i)  For a first offence to a penalty of not less than one hundred dollars or more than four hundred dollars.

(ii) For a second offence, whether against the

same provision or another provision of the
said sections, to a penalty of not less than
three hundred dollars or more than one
thousand dollars or to imprisonment for a
term not exceeding three months or to both

that penalty and imprisonment; and

(iii) For a third or subsequent offence whether

against the same provision or another
provision of the said sections, to a penalty
of not less than three hundred and fifty
dollars or more than one thousand five
hundred dollars or to imprisonment for a term
not exceeding six months or to both that

penalty and imprisonment.

The increased penalties and punishments prescribed by
this subsection shall be imposable and be imposed
notwithstanding that the offence punishable thereby is
created by a provision of the sections of this Act
referred to different from that creating any prior
offence under this section committed by the defendant

in question.

In addition to any other penalty imposed under this
section, the Licensing Court may forfeit any license
held by a person convicted of a second or subsequent
offence referred to in this subsection and for the
purposes of any such forfeiture, the provisions of
section 47a of this Act, will all necessary adaptions,
shall apply and extend.

In the case of a conviction for any such offences, the court may, if it thinks it expedient to do so, declare all liquor found in the possession of the offender and he vessels containing such liquor to be forfeited."

The appellants submitted that a conviction for a single

breach of subs.125AE(2) could not result either in
forfeiture of its license or a penalty of $5,000 but that,
by virtue of subs.129(3), in a prosecution for an offence
the pecuniary penalty would necessarily be lower and
forfeiture would be impermissible. It was said that, in
such circumstances, the legislature cannot have intended
more serious consequences than those provided for by
subs.129(3) to be visited upon a licensee in a civil
proceeding under s.47B in reliance upon s.47A(2)(g). That
might well be so. In a show cause proceeding based upon a
single breach of subs.125AE(2), it might be inappropriate
for the Licensing Court to impose a higher penalty than
would be permissible under subs.129(3) upon conviction of an
offence for the breach.

It is unnecessary to pursue that question, for that is

not the position in which the appellant finds itself. On
the evidence before the Licensing Court, it committed a
number of breaches of subs.125AE(2), and there is no
incongruity whatever between the penalty imposed upon it and
what would have been permissible under subs.129(3) upon
convictions of the appellant for offences based upon those

breaches.

There is, in any event, a further defect in the

appellant's argument. The respondent did not need to rely
upon subs.47A(2)(g). It could, and did, also rely upon
subs.47A(2)(d), that is to say, upon the conduct of the
licensed premises in an improper manner. The appellants
submitted that each of the paragraphs in subs.47A(2) are
"disjunctive" or mutually exclusive. It was said that
conduct which fits within one paragraph cannot be relied
upon as satisfying another. It was not explained how, in
such circumstances, a choice of the appropriate paragraph is
to be made. It is sufficient to say that there is nothing in
either the language or the context which gives any support

to this submission.

The appellant's principal claim was to have the order

appealed from set aside, but in the alternative it asked to
have the fine reduced. It was contended that there was an
error in law involved in imposing the maximum permissible
fine, and asserted that the Licensing Court must have either
disregarded subs.129(3) or misdirected itself as to the
relationship between s.125AE and subs.129(3) in determining

the penalty.

The attempt to have the penalty reduced depended upon

the same view of the Act advanced by the appellant in
support of its claim to have the order set aside. For

reasons already given, that view is erroneous.

Accordingly, the appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 50 of 1991
BETWEEN:

HOMMETT PTY. LTD.

(Licensee) Appellant

- and -

THE REGISTRAR, LICENSING

COURT OF APPEAL Respondent

The President
Mr Justice McPherson

Mr Justice Williams

Judgment of the Court delivered on the

14th day of April, 1992

APPEAL DISMISSED WITH COSTS

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 50 of 1991
Before the Court of Appeal
The President Mr Justice McPherson Mr Justice Williams
BETWEEN:

HOMMETT PTY. LTD.

(Licensee) Appellant

- and -

THE REGISTRAR, LICENSING

COURT OF APPEAL Respondent

JUDGMENT OF THE COURT

Delivered the 14th day of April, 1992

MINUTE OF ORDER:	Appeal dismissed with costs
CATCHWORDS:
Counsel:	Mr M.P. Sumner-Potts for the Appellant Mr J. Rolls for the Respondent
Solicitors:	Messrs. Stower and Bovey for the Appellant Crown Solicitor for the Respondent

Hearing Date: 9th April, 1992