Jubb v Commissioner for Licensing
[2009] TASSC 16
•18 March 2009
[2009] TASSC 16
CITATION: Jubb v Commissioner for Licensing [2009] TASSC 16
PARTIES: JUBB, Anthony Michael
v
COMMISSIONER FOR LICENSING
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 925/2008
DELIVERED ON: 18 March 2009
DELIVERED AT: Hobart
HEARING DATE: 10, 11 February 2009
JUDGMENT OF: Tennent J
CATCHWORDS:
Liquor Law – Licensing – Forfeiture, cancellation, suspension or surrender of licence – General – Power of Commissioner for Licensing to cancel out-of-hours permit – Method of review of Commissioner's decision.
Liquor Licensing Act 1990 (Tas), ss40 and 211.
Aust Dig Liquor Law [44]
Administrative Law – Judicial review – Powers of courts under judicial review legislation – Other orders – Where appropriate to summarily dismiss application.
Judicial Review Act2000 (Tas), ss10, 12(b) and 38.
Aust Dig Administrative Law [1085]
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Existence of obligation – Rights and interests affected by decision.
Judicial Review Act 2000 (Tas), ss17 and 27.
Aust Dig Administrative Law [1047]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine
Respondent: P Turner
Solicitors:
Appellant: Shaun McElwaine
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 16
Number of paragraphs: 49
Serial No 16/2009
File No 925/2008
ANTHONY MICHAEL JUBB v COMMISSIONER FOR LICENSING
REASONS FOR JUDGMENT TENNENT J
18 March 2009
Prior to 13 October 2008, Anthony Michael Jubb, the operator of licensed premises at 11 Franklin Wharf, Hobart, known as Isobar, held an Out-of-hours Permit in respect of those premises issued to him on 5 December 2002 pursuant to the Liquor and Accommodation Act 1990 (from 2004 known as the Liquor Licensing Act 1990) ("the Act"). The permit entitled Mr Jubb to open the premises and sell alcohol between the hours of 12 midnight and 5am each day. The permit was subject only to the condition that alcohol sold on the premises during the hours covered by the permit was not to be removed from the premises. The permit was expressed to continue in force until terminated in accordance with the provisions of Part 2 of the Act.
By letter dated 13 October 2008 to Mr Jubb, the Commissioner for Licensing cancelled that permit. The letter was hand delivered to Mr Jubb on 14 October 2008. The Commissioner said in her letter:
"In accordance with sub-paragraph 40(1)(b)(i) of the Liquor Licensing Act 1990, I am satisfied that the sale of liquor at Isobar, between the times specified on the out of hours permit, is causing the occurrence of disorderly conduct in Isobar. Accordingly, I give notice that your out-of-hours permit is now cancelled and that you cannot trade beyond 12 midnight.
As licensee, you have a right of appeal to the Licensing Board against the cancellation of the out-of-hours permit. You also have the right to re-apply for a new permit (you should note that any new permit may include new or changed conditions from any permit previously issued to you)."
The Act, s40(1)(b)(i), provides:
"40 (1) The Commissioner may cancel or vary an out-of-hours permit granted in respect of licensed premises if the Commissioner is satisfied that the sale of liquor on those premises between the times specified in the permit –
(a) …
(b) is causing the occurrence of disorderly conduct –
(i) in the premises; or
(ii) in the neighbourhood of the premises."
Mr Jubb, as he was invited to do, made an application for a further out-of-hours permit. That was granted on 20 November 2008. However, there were three significant differences between that permit and that cancelled on 14 October. In the new permit, the times during which Isobar could open were more restrictive and there were a number of extra conditions imposed on the permit. Further, the new permit was of limited duration. This permit was to expire on 15 December 2008. It has been renewed since then, but only at this stage to 16 March 2009.
Mr Jubb elected not to appeal the Commissioner's decision to the Licensing Board. Instead, on 24 October 2008, he filed an application in this Court by which he sought a judicial review of the Commissioner's decision. By that application, Mr Jubb (hereinafter referred to as "the applicant") sought, not only final relief, but also urgent interim relief. He sought an order suspending the operation of the Commissioner's decision until further order or, alternatively, an order staying the operation of it until further order. The Commissioner filed a notice of submission in the proceedings. On 30 October 2008, the intervener in the proceedings, the Attorney-General, filed an interlocutory application by which she sought that pursuant to the Judicial Review Act 2000 ("the JR Act"), s12(b), the originating application of the applicant be dismissed. The interlocutory applications of both parties came on before a judge of this Court. Both were dismissed.
The application for a judicial review came on for hearing on 10 February 2009. At the commencement of the hearing, counsel for the applicant sought to amend the application filed the previous October. He was given leave to do so, there being no objection from counsel for the Attorney-General, whom I will refer to as the respondent in these reasons.
Counsel for the applicant submitted that his client's application should succeed and that pursuant to the JR Act, s27, there should be an order that the Commissioner's decision be quashed or set aside. His position was that, once this occurred, the original out-of-hours permit granted in December 2002 would continue to have full force and effect as if no decision to cancel had ever been made. Counsel for the respondent, on the other hand, submitted that the application should fail. Firstly, he argued that I should exercise my discretion pursuant to the JR Act, s12(b), and dismiss the application summarily. Alternatively, he argued that I should exercise my discretion pursuant to the JR Act, s27, and dismiss the application. It did not become apparent until almost the end of the hearing that there was a dispute as to whether, having regard to the dismissal of the respondent's interlocutory application, I retained the power to exercise a discretion pursuant to s12(b). Counsel for the applicant ultimately argued that I did not, but that if I did, it was not appropriate for me to do so.
The JR Act, s12(b) - Does the power still exist to summarily dismiss by reference to this section?
The JR Act, s12(b), provides as follows:
"12 Despite section 10, but without limiting section 38, the Court may dismiss an application under section 17, 18 or 19 that was made to the Court relating to a reviewable matter because –
(a) …; or
(b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the Court or another court or a tribunal, an authority or a person."
There is no dispute that this is an application pursuant to the JR Act, s17. The JR Act, s10, provides as follows:
"The rights conferred by this Act on a person to make an application to the Court relating to a reviewable matter are in addition to any other rights that the person has to seek a review of the matter (whether by the Court or another court or a tribunal, authority or person)."
Section 38 also contains powers of the Court to stay or dismiss applications.
Counsel for the respondent submitted that the dismissal of the interlocutory application did not give rise to any issue estoppel. This was not a case where that application was being renewed or a new application made. His submission was simply that the Court retained the power at all times when considering an application for review to exercise the power given by the JR Act, s12(b).
Counsel for the applicant did not, as I understand his submissions, actually join issue with that proposition. What he submitted, however, was that the only material relied upon for the purpose of the interlocutory application and now, was an affidavit by Mr Philip Kimber sworn 30 October 2008. There was no new material put before the Court and there was no further evidentiary basis upon which the Court could renew its consideration of a dismissal under the section. He submitted that it had been open to the respondent to appeal the interlocutory dismissal, but she had not done so. The basis of his argument appeared more that it should be considered an abuse of process for the respondent to raise this issue again. The cases to which counsel for the applicant referred (Christie v Baker [1996] 2 VR 582; Nominal Defendant v Manning (2000) 50 NSWLR 139) both dealt with repeated applications to extend time under limitation provisions.
With respect, the JR Act, s12(b), is in a somewhat different category in my view to provisions in limitation legislation which permit a litigant to make an application to extend time. The power contained in s12(b) is not dependent on any application by a party. It is a power reposed in the Court whenever it is dealing with an application pursuant to the JR Act, s17, which has been made to it. It is a power which this Court could exercise irrespective of whether the issue has been raised by a party. There is nothing in the JR Act, s12, which limits the time at which the Court may consider the use of the power there given. In my view there is nothing to prevent the Court, on the final hearing of the applicant's application for review, from considering the application of all powers reposed in it by the JR Act, even where the application of one of the powers may have been raised on an interlocutory basis before a judge of the court other than the trial judge.
Should the Court exercise its discretion pursuant to the JR Act, s12(b)?
It is appropriate to deal with this issue first, simply because if the Court exercises its discretion adversely to the applicant, there will be no need to consider any other aspect of the matter.
There is no dispute that pursuant to the Act, s211, a person may appeal to the Licensing Board against a decision of the Commissioner to cancel an out-of-hours permit. However, the mere existence of that remedy does not mean this Court should decline to hear the review application in this case. Section 12(b) provides for summary dismissal in circumstances where "adequate provision" is made for review elsewhere.
In Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2003] TASSC 142, Underwood J (as he then was) dealt with an application pursuant to the Act, s12(b). He said at pars19 – 21:
"The Review Act, s12(b), enacts a well-established principle of administrative law, namely that the issue of a prerogative writ will be denied if there is another 'equally effective and convenient remedy', per Widgery CJ in R v Hillingdon London Borough Council, Ex parte Royco Homes Ltd [1974] QB 720 at 728. As to what matters should be considered when determining whether there is an equally effective and convenient remedy, Glidewell LJ said in Ex parte Waldron [1986] 1 QB 824 at 852:
'Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than the procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant relief by way of judicial review when an alternative remedy is available.'
In Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, Kirby P (as he then was) reviewed the authorities dealing with this principle and then set out, at 511, relevant considerations that he had earlier gathered in Ballam v Higgins (1986) 17 IR 131, which support a general rule that the Court should not intervene until the other remedies conferred by Parliament have been exhausted:
'1 It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals ...
2 It affords a proper place to the specialised tribunal which may have a superior advantage in ready knowledge of the developments of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that tribunal frequently has a superior armoury of remedies at its disposal than this Court can offer;
3 Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the Tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction;
4 It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and
5 It conserves to cases where no other remedy exists, the discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction.'
King CJ referred with approval to Boral in Weinel v Judge Parsons (1994) 62 SASR 501 when he said, at 504 - 505:
'Remedies by way of judicial review are discretionary. They are generally not granted where there is another equally effective and convenient remedy; R v Hillingdon London Borough Council ex parte Royco Homes Ltd (1974) 1 QB 720 per Lord Widgery at p728. Judicial Review should not be used as an alternative to the exercise of a right of appeal and the discretion may be exercised to discourage the procedure from being so used; R v Ross Jones ex parte Green (1984) 156 CLR 185 per Wilson and Dawson JJ at p214. The authorities were considered by the judges of the Court of Appeal of New South Wales in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. The judgments in that case make it unnecessary for me to examine the cases further in this judgment.'"
His Honour in that case declined to summarily dismiss the application for review because he took the view that the argument involved a serious question of statutory interpretation, that the basic facts in the dispute were not under challenge, and that the questions of law to be determined did not depend in any way upon the specialised knowledge and skills of the commission there being considered. In effect, he was not satisfied that the alternative review process available provided an adequate provision for a review.
Counsel for the respondent submitted that the s211 appeal process provided adequate provision for review. He submitted that an appeal to the Board would resolve the issues between the parties fully and directly, that the process of an appeal would be quick, and that the judicial review system was not meant to be a parallel system to other forms of review, but was designed to deal with matters which could not be dealt with appropriately by review elsewhere. He also submitted that there was no issue of statutory construction arising in this case which would need to be dealt with by a court.
Counsel for the applicant did not dispute that the Board, had an appeal been made to it, would have been able to deal with that appeal quickly. However, he disputed that that appeal process would provide adequately for a review in the present case. He submitted that there were significant legal issues involved in this matter which needed to be resolved by a Court, and which the Licensing Board would be ill-equipped to deal with. He contended, for example, that there would be an issue as to whether or not the Board even had jurisdiction to hear an appeal in this matter. He contended that, on a proper construction of s211, an appeal only lies to the Board against a valid decision of the Commissioner. The decision here was, he submitted, invalid and hence the Board had no jurisdiction to hear an appeal from it. Further, he submitted that the review raised issues about the proper construction of the Act, s40, insofar as it defined the Commissioner's powers to cancel a permit. If the applicant were forced into an appeal to the Board, these issues would be raised. They were not appropriate matters to be dealt with by the Board and the end result would most likely be still a further proceeding in this Court to resolve those issues.
If, as counsel for the applicant contended, the decision of the Commissioner is invalid, that would leave, were it quashed, the original out-of-hours permit on foot. Why, counsel asked rhetorically, should the applicant be required to undergo a process such as that provided for in an appeal to the Board, where he contended that he still held a valid unrestricted permit. The permit provided him with a very valuable resource which he was entitled to protect.
While I accept that counsel for the respondent does not concede that there are any questions of law to be decided in this matter, and that may ultimately prove to be correct, there is little doubt that the applicant, if forced to the Board, will raise an issue as to the jurisdiction of the Board to entertain an appeal. There is every likelihood that issue will inevitably need to be dealt with by a court. For that reason, I am not persuaded that I should exercise my discretion to summarily dismiss the application for review.
Background to cancellation of permit
There had been a history of contact between the applicant and the Commissioner's office going back over the period during which the cancelled out-of-hours permit had operated. Periodically, issues had been raised with the applicant about incidents occurring in and around Isobar which the Commissioner required the applicant to address.
By a letter dated 15 August 2008, the Commissioner advised the applicant:
"As you have been previously advised, your premises have been monitored by staff of the Liquor and Gaming Branch of the Department of Treasury and Finance and by members of Tasmania Police for some considerable time now, to ensure that you continue to implement and maintain measures in Isobar that result in (at worst) a low number of minor incidents.
There has been a repeated pattern of assaults (including serious assaults) within your premises over recent months. I am concerned that the frequency and severity of these assaults appears initially to decrease after discussions between yourself and staff of the Liquor and Gaming Branch, only to increase again over time. As discussed with Mr Atkinson-MacEwen, my primary concern is to ensure the safety of your patrons and the general public. This pattern of assaults must not continue, and I am determined to take necessary measures to ensure that it does not.
As you are aware, my staff and I are concerned about the number and nature of the assaults that occur after 2 am, and are concerned that the assaults may be linked to:
·The numbers of persons being served at your premises;
·The number of areas within your premises at which liquor is served; and
·The manner in which liquor is served (including the types and volumes of liquor served and frequency of service).
Section 40(1)(b)(1) of the Liquor Licensing Act 1990 enables me, as Commissioner for Licensing, to cancel or vary an out of hours permit 'if the Commissioner is satisfied that the sale of liquor on those premises between the times specified in the permit ... is causing the occurrence of disorderly conduct … in the premises'. Given the nature and number of matters that Tasmania Police have had to deal with inside Isobar, I am satisfied that disorderly conduct is occurring within Isobar.
As a result, my staff will be working in conjunction with Tasmania Police from now on to monitor very closely the sale of liquor in Isobar in order to determine whether the disorderly conduct is caused by the sale of liquor on your premises."
The applicant responded to that letter on 4 September in the following terms:
"I refer to your letter of 15 August 2008.
I am obviously concerned about the nature of the allegations which you make, as I consider myself to be a responsible licensee who takes great care and attention to ensure that:
·the provisions of the Liquor License [sic] applicable to this venue and the out of hours permit are complied with;
·patrons are adequately supervised and controlled; and
·that I adhere to my obligations under the Liquor Licensing Act 1990.
Doubtless as you are aware I have put in place a number of measures in recent times in order to effectively reduce the potential for incidence [sic] of disorderly conduct outside of the licensed premises. Indeed I have been commended for my efforts by various officers of Tasmania Police and my initiative in separating patrons of this establishment from general members of the public is, I believe, now regarded as an example of best practice which may well be implemented in other areas of the State.
I must say that I am at a loss to understand what you intend by your reference to a repeated pattern of assaults within the licensed premises over recent months. I am personally aware of three cases of assault that occurred within the premises in July 2008. Each was a random event quite unrelated to the sale of liquor on the premises. Each was dealt with by my security staff in an appropriate, efficient and lawful way and, when necessary, were reported to and subsequently dealt with by officers of Tasmania Police.
I am sure that you will understand that I cannot be held responsible under my license [sic] for random acts of violence visited by one person upon another. The investigations which I have undertaken indicate that none of these assaults was related to the way in which liquor was sold at the licensed premises between the times specified in the out of hours permit.
Your letter does not provide me with any particulars as to how it has [sic] contended that these assaults (or any others) are so related. Would you please provide this information to me so that I might be able to respond in more detail.
I can assure you that I undertake and accept my responsibilities as a licensee very seriously. I am an experienced operator. If you provide me with evidence as to how it is contended that the sale of liquor on the premises of the Isobar is causing disorderly conduct within it between the times specified in the permit, then I will immediately address your concerns and respond to them appropriately."
The Commissioner replied by letter dated 23 September 2008 in the following terms:
"Thank you for you for your correspondence of 4 September 2008 regarding the operation of your premises. In your letter you sought clarification regarding the pattern of assaults occurring within your premises.
As you are aware, Tasmania Police provide me with regular updates of all the incidents to which they are called each week. As previously discussed, the frequency of the occurrence of Police callouts to deal with assaults and other serious incidents at Isobar is significantly higher than that for any other premises in the Hobart waterfront area.
Moreover, the information provided by Tasmania Police on assaults occurring inside Isobar are consistent, in that they demonstrate a continuing link between patrons of Isobar and alcohol-related assaults and incidents. Your statement that each assault or incident 'was a random event quite unrelated to the sale of liquor on the premises' is not borne out by the information supplied by Police.
I reiterate my continued advice that you are required to introduce and maintain measures that reduce the number of assaults within your premises. If you have any questions in relation to this matter, I ask that you contact Senior Compliance Inspector Mark Brazendale on 6233 6141."
On 24 September 2008, the Commissioner considered a briefing paper in relation to the operations of Isobar. The writer of that report identified issues, and under a heading "Options", listed three options available to the Commissioner. These were:
"1 Determine to take no action against the licensee.
2 Write to Mr Jubb again, advising him of his responsibilities.
3Sign the attached letter directed to Mr Jubb advising him that you are considering cancelling the out of hours permit issued to him in accordance with section 40(1)(b)(i) of the Liquor Licensing Act 1990.
The letter informs him that you are satisfied that the sale of liquor on his premises between the times specified in the permit is causing the occurrence of disorderly conduct in the premises, and seeks a response within fourteen days as to why the out of hours permit should not be cancelled. The letter also includes attachments of the police calls to the premises for 2007 and 2008, and the list of assaults committed within the premises."
Option 3 was the option recommended to the Commissioner.
At the end of the document there was provision for the Commissioner to indicate whether the recommendation was approved or not. The Commissioner circled the word "approved" and signed that endorsement. On 24 September 2008, the Commissioner wrote to the applicant. In that letter she said:
"I refer to the liquor licence held by you, authorising the sale of liquor at Isobar, 11A Franklin Wharf, Hobart. As a result of a number of disturbances within Isobar since 1 January 2007, I am considering taking action against you based on the following grounds.
GROUNDS
From 1 January 2007 to 24 August 2008 there have been 22 instances of disorderly conduct within your premises resulting in official reports to Tasmania Police. These matters are outlined in the attachment provided.
On five (5) occasions between 27 April 2007 and 15 August 2008 you have either met with, or spoken to, officers of the Liquor and Gaming Branch regarding matters of disorderly conduct within your premises. On each occasion you have advised officers of the Branch of several reasons why you believe the incidents occur, and you have undertaken to implement measures to reduce the number of incidents.
You were advised at the time of these discussions, and again in formal correspondence from the Branch, that the Liquor Licensing Act 1990 provides that the Commissioner for Licensing may cancel an out of hours permit if satisfied that the sale of liquor on those premises between the hours specified in the permit is causing the occurrence of disorderly conduct within the premises.
As previously advised, I am concerned at the number and severity of instances of disorderly conduct within your premises. In particular, I am concerned that these incidents continue despite formal meetings with officers of my branch and numerous cautions from Tasmania Police.
In accordance with sub-paragraph 40(1)(b)(i) of the Liquor Licensing Act 1990, if I am satisfied that the sale of liquor at Isobar, between the times specified on the out of hours permit, is causing the occurrence of disorderly conduct in Isobar, I may cancel or vary your out of hours permit.
You are invited to make written submission to me within 14 days of receipt of this notice, as to why action should not be taken against you. Any submission you make will be considered in determining what action may be taken.
Should you have any questions regarding this matter, I ask that you contact Leon Atkinson-MacEwen, Director, Liquor and Gaming Branch, on 6233 3266."
Attached to that letter was a one page summary of incidents said to have occurred at Isobar. There is no dispute that letter was the letter the subject of recommendation 3 approved by the Commissioner. The letter accords with the recommendation but not the notes which appear under the recommendation in the briefing paper. Those notes suggest the proposed letter will inform the applicant that the Commissioner was then satisfied that incidents of disorderly conduct at Isobar were connected to the sale of liquor there during the out-of-hours permit hours. On 8 October 2008, the applicant wrote a six page response to the Commissioner dealing with each of the incidents referred to in the attachment to the Commissioner's letter and expressing the view that the incidents were not connected to the sale of liquor during the hours covered by the permit.
An officer of the commission prepared a further discussion paper for the Commissioner after the applicant's response was received. The recommendation in that paper was for the applicant's permit to be cancelled. The Commissioner accepted that recommendation and her letter, dated 13 October 2008 but served on 14 October, by which she cancelled the permit, followed. There was a considerable amount of material attached to the October discussion paper in the form of police reports and witness statements relating to a number of the incidents in the summary sent to the applicant. This material was all before the Commissioner when she considered the report and decided to proceed to cancellation. None of the police reports or witness statements which the Commissioner considered, were disclosed to the applicant during this process to give him an opportunity to comment.
The application for review – Ground (a)
This ground of review was as follows:
"the Respondent erred in law in that the facts as found by her or alternatively the facts as relied upon by her did not satisfy the criteria required by Section 40(1)(b)(i) of the Liquor Licensing Act 1990 (the Act) and as a consequence the Respondent had no jurisdiction to make the decision."
There can be no dispute that the power afforded to the Commissioner by reference to s40 involves the exercise of a discretion. That discretion only falls to be exercised if the Commissioner is satisfied about certain things. These are that:
- the sale of liquor, on the identified premises, during the hours covered by the permit
-is causing the occurrence of disorderly conduct
-in the premises.
The essence of the applicant's argument under this ground is that the facts as found by the Commissioner, or relied upon by her to make her decision, were not sufficient to satisfy her as to all the matters about which she needed to be satisfied before she could exercise her discretion. In particular, the Commissioner had failed to find facts, or there were no facts which she could rely on in the material before her, which would satisfy her as to the link between the sale of liquor and the instances of disorderly conduct.
It is accepted that the question of whether facts found by a decision-maker or relied upon for the purpose of making a decision are sufficient to satisfy a statutory test required to be met by that decision-maker is a question of law: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47.
The Commissioner's decision to send the letter dated 13 October 2008 was made on the basis of the report provided by her office to her and the attachments to that report. The submission of counsel for the applicant is that nowhere in that material are there facts from which the Commissioner could draw the conclusion that the sale of liquor at Isobar during the hours of the out-of-hours permit was causative of the incidents of disorderly conduct which were identified as having occurred in Isobar. Having drawn the Court's attention to a number of pages in the court book, counsel for the applicant submitted that there was no evidence certain assaults occurred because of the sale of liquor out-of-hours, in relation to certain incidents there was no evidence of intoxication or service of alcohol out-of-hours, and the applicant had given unchallenged evidence that there were other possible causes for the incidents detailed. He also submitted that Parliament did not confer on the Commissioner a power to cancel a permit simply because of the occurrence of disorderly conduct within a venue. It only did so if the conduct could be linked to the sale of liquor within the venue during the permit hours. He suggested that young people frequently go out on the town at night and drink at different venues. He asked rhetorically why Isobar should be penalised if patrons drank elsewhere before going there.
The Commissioner had before her a significant amount of material. She was entitled to have regard to the facts stated in that material and to inferences reasonably open to her from it. She drew a conclusion that disorderly conduct within Isobar was caused by the sale of alcohol during the permit hours. There can be no doubt whatsoever that on a number of occasions between 1 January 2007 and 24 August 2008 there were incidents of disorderly conduct within Isobar involving patrons during the permit hours. Whether these incidents may have involved assaults which would have resulted in convictions is irrelevant. The material before the Commissioner disclosed that, in respect of a number of those incidents, one or more of the people involved were affected by alcohol at the time. It is accepted that, in respect of some of the incidents, there is no reference in the papers to the parties involved either being intoxicated or having consumed alcohol prior to the incident.
The following information can be distilled from the paperwork which the Commissioner had before her.
Date of incident
Time
Alcohol noted as involved
Time spent in Isobar prior to incident if known
14 January 2007
2am
No
Not Known
8 April 2007
4.15am
Yes
Not known
30 September 2007
1.15am
Yes
Not known
7 October 2007
12.30am to 1am
Yes
Victim at Isobar since about 11pm
14 October 2007
3am
Yes
Victim at Isobar since about 10pm
4 November 2007
3am
No
Not known
15 December 2007
1.20am
Yes
Not known
22 December 2007
1am
No
Victim at Isobar since about 10.50pm
24 February 2008
12.40am
Yes
Been drinking since 7pm but mainly elsewhere
13 April 2008
3am
Yes
Victim been drinking at Isobar since about 11pm
27 April 2008
1.30am
Yes
Not known
4 May 2008
12.15am
Yes
Not known
15 June 2008
3.30am
Yes
Victim been at Isobar at least 2 hours prior to incident
12 July 2008
12.55am
No
Not known
26 July 2008
3am
No
Not known
27 July 2008
2.30am
Yes
Not known
The above summary shows there were incidents in which alcohol was involved where one or more of the parties had been in Isobar for some hours prior to the incident.
The applicant, in his letter of 8 October 2008, provided a number of possible reasons why the incidents described might have occurred. For example, he suggested fights over girlfriends, planned assaults, or a continuation of previous ill-feeling. These explanations cannot, in my view, be characterised as unchallenged evidence as to why the incidents occurred. At best, they are the applicant's theories which may very well apply in some cases. The issue is clearly the causative link between the sale of liquor and the disorderly conduct. The applicant's submissions are predicated upon the need for the Commissioner to be satisfied that the sale of alcohol at the relevant time was the sole cause of the disorderly conduct, in effect that there were no other contributing factors or reasons why two particular parties may have become involved in an incident. His submissions appeared to be that if, for example, two parties had a history of ill-feeling and met by coincidence in Isobar and had a fight, any alcohol they may have bought there and consumed was irrelevant. They also appeared to presume that if a patron became intoxicated to any degree elsewhere or prior to permit hours, that could not be considered even if that patron purchased and consumed alcohol in Isobar during permit hours.
With respect, such an interpretation of s40 would render it useless. I cannot conceive of any circumstances where there will be direct evidence that the sale of alcohol at a particular time caused an incident. The Commissioner needs to have regard to evidence of the circumstances surrounding each incident. The Commissioner was entitled to conclude that, if an incident occurred two, three or fours hours into the permit period, and the parties had been in Isobar for a period of time before that incident, the parties involved had been consuming alcohol purchased in Isobar during the permit hours. She was also entitled to conclude as a matter of general knowledge that consumption of alcohol over a period of time could affect a person's behaviour in the sense of making them more uninhibited and perhaps more likely to fight than would otherwise have been the case.
There was material before the Commissioner which could satisfy her that:
- disorderly conduct had occurred during permit hours;
-one or more parties had been in Isobar for a considerable time, during and prior to permit hours, prior to the disorderly conduct incident;
-one or more parties involved in incidents were intoxicated to some degree;
-they had been buying alcohol which either resulted in, or contributed to, their state of intoxication during permit hours; and
-the disorderly behaviour was as a consequence of consuming the alcohol bought during permit hours.
In those circumstances ground (a) cannot succeed.
Ground (b)
This ground was in the following terms:
"alternatively, the Respondent failed to find facts necessary for the exercise of her jurisdiction pursuant to Section 40(1)(b)(i) of the Act and accordingly the Respondent lacked jurisdiction to make the decision."
In support of this ground, counsel for the applicant referred to a passage appearing in Gedeon v Commissioner of New South Wales Crime Commission (2008) 82 ALJR 1464 at par43 and following. The High Court said of the term "jurisdictional fact":
"Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker."
Counsel submitted there was an obligation upon the Commissioner to find jurisdictional facts. It was not enough to say there may be facts which establish certain matters, the Commissioner must find them and the report upon which she relied skirted the issue. There was nothing, he argued, within that report which addressed the causal link. The Commissioner expressed herself satisfied as to the causal link between the sale of liquor and the disorderly conduct. I have already referred to the facts she had before her, and the findings and inferences which, in my view, she was entitled to draw from those facts. Counsel's submission presupposes the Commissioner read the report and nothing else, and that she exercised little or no level of independent thought about all the report's attachments. There is nothing, in my view, to support that approach.
While counsel did not actually say it, it seemed to be implicit in his argument that it was incumbent upon the Commissioner to state the precise findings which underpinned her ultimate finding as to the connection between the sale of liquor and the disorderly conduct. If that is what he was suggesting, with respect I do not accept the Commissioner was obliged to do that.
Ground (b) should fail.
Ground (c)(i) and (ii)
Ground (c)(i) and (ii)provides as follows:
"alternatively that the making of the decision by the Respondent was an improper exercise of the power conferred upon her by Section 40(1)(b)(i) of the Act in that in making the decision the Respondent:
(i)the Respondent determined on 24 September 2008 that she was satisfied that the sale of liquor on the premises between the times specified in the permit is causing the occurrence of disorderly conduct in the premises within the meaning of Section 40(1)(b)(i) of the Act before she invited the applicant, by letter of 24 September 2008, to make submissions and as such predetermined the exercise of her statutory power;
(ii)the Respondent by 24 September 2008 was satisfied that the sale of liquor on the premises between the times specified in the permit is causing the occurrence of disorderly conduct in the premises before she invited the applicant by letter of 24 September 2008 to make submissions as to what action should be taken and thereby the Respondent failed to fairly consider the response of the applicant provided on 8 October 2008 and/or failed to give proper, genuine and realistic consideration to the merits of the case before she made the decision."
The basis for both these grounds is an assertion that the Commissioner prejudged the issue she needed to determine in that as at 24 September 2008 she had already determined that she was going to cancel the applicant's licence. Reliance for this assertion is on the fact that the Commissioner approved by circling the appropriate box, option 3, as put to her by an officer of her department (see par23 where the option is set out). Counsel submitted that there could be no other conclusion other than the Commissioner adopted the conclusions of the author of the report.
The difficulty with this submission again is that it presupposes the Commissioner exercised no level of independent thought. While the Commissioner did approve the particular option, there is no doubt the letter sent as a consequence did not express the view expressed by the author of the report at that time. The letter demonstrated the Commissioner was aware of her statutory power, that she was putting the applicant on notice as to what her powers were and what she sought from him. I do not accept that it is implicit from the circling of option 3 that the Commissioner had prejudged the issue to the extent that she had decided categorically as at 24 September 2008 to cancel the licence and no further consideration would be given to the matter.
These grounds should fail.
Grounds (d)(i) to (viii)
These grounds provided as follows:
"Alternatively, the decision of the Respondent was made in breach of the rules of natural justice (procedural fairness) in that the Respondent:
(i)having invited the Applicant in her letter of 24 September 2008 to make a written submission within 14 days as to why action should not be taken against him and having advised the applicant that any submission made by him would be considered in determining what action may be taken by her, failed to fairly consider or alternatively failed to give proper genuine and realistic consideration to the submission of the applicant dated 8 October 2008 before making the decision;
(ii)based her decision on facts, matters or circumstances which were not advised or disclosed to the applicant before the decision was made, which material was credible relevant and/or significant and which material consisted of:
· incidents at the licensed premises commencing in December 2005;
· an allegation that the level of intoxication of persons involved in instances of disorderly conduct and the violent nature of several of the incidents were the result of a concern that the applicant was not ensuring that responsible service of alcohol practices were encouraged within the licensed premises;
· six meetings held between officers of the Respondent and the applicant between 30 August 2006 and 3 April 2008 and the contents of those meeting [sic];
· a concern as to the length of time that it had taken the applicant to implement strategies at the licensed premises to deal with disorderly conduct;
· a meeting between officers of the Respondent and the applicant which occurred on 15 August 2008 and concerns of the Respondents [sic] officers as to apparent observed failures of Mr Jubb as a consequence of that meeting;
· the content of a memorandum prepared by officers of the Respondent and submitted to the Respondent, which is undated, but which was considered by the Respondent on 24 September 2008 together with the facts matters and circumstances set out in that memorandum;
· evidence put to the Respondent as to incidents which occurred outside of the licensed premises together with incidents which had occurred close to the commencement of the out of hours permit;
· evidence which was placed before the Respondent prior to making the decision that external factors, that is to say factors not associated with the applicant or the serving of alcohol at the licensed premises, which may contribute to the occurrence of instances of disorderly conduct;
· detailed police incident reports, with witness statements, in respect of each of the incidents summarised in the attachment to the letter from the Respondent to the applicant dated 24 September 2008;
· internal memoranda, copies of letters and statements each submitted by officers of the respondent to the Respondent with an undated memorandum which was considered by the Respondent on 24 September 2008;
(iii)failed to afford to the applicant an opportunity, either by way of hearing or further submissions, to resolve any inconsistencies between the material intended to be relied upon by the Respondent and the response of the applicant before the making of the decision;
(iv)failed to advise the applicant that she regarded or intended to regard the version of the events as provided by him to her as unreliable or implausible or would not, on any other basis, be taken into account by her;
(v)failed to advise the applicant prior to the making of the decision that she intended to place reliance upon or alternatively regarded as important, concerns expressed by her officers to her as to whether the applicant was ensuring that responsible service of alcohol practices were encouraged within the licensed premises and that this was a key contributing factor to the incidents of disorderly conduct relied upon by her and as a consequence failed to fairly advise the applicant that his response to her should address this issue;
(vi)advised the applicant in her letter of 24 September 2008, prior to the making of the decision, that she may cancel or vary the out of hours permit issued to the applicant if satisfied that the sale of liquor at the licensed premises between the times specified in the out of hours permit is causing the occurrence of disorderly conduct in the licensed premises when, in fact, the Respondent had reached that view on 24 September 2008 and thereby mislead [sic] the applicant as to the nature of the response which the Respondent was seeking from him or alternatively mislead [sic] the applicant as to the issues which he was required to address;
(vii)failed to advise the applicant that he was required to address in his response to the letter to him of 24 September 2008 what action, if any, he took to prevent each of the incidents referred to in that letter from occurring and only invited the applicant to advise her as to why action should not be taken against him pursuant to Section 40(1)(b)(i) of the act; and/or
(viii)failed to consider the case which she invited the applicant to put to her by her letter of 24 September 2008 and made her decision on the basis that the key, substantial or material issue, was a failure by the applicant to introduce measures to assist in controlling the sale and consumption of alcohol within the licensed premises."
The grounds to an extent repeat matters the applicant has identified as discrete grounds of review which I have dealt with. They also in large part display a somewhat disingenuous approach to the ongoing dealings between the applicant and the Commissioner. With respect, if the applicant did not know by the time he received the letter of 24 September 2008 what the underlying problems were considered to be, then he probably never will. It is clear from the applicant's responses to the Commissioner that he held a view that he was doing everything he possibly and reasonably could and should as far as the operation of Isobar was concerned, to address issues raised by the Commissioner's office from time to time, and equally that the Commissioner's office did not always believe that he was. The applicant must have been aware of the terms of the Commissioner's power under s40. His response in October was quite obviously directed to persuading the Commissioner that, in the context of his operating arrangements, while a number of incidents had occurred, there were reasons for them other than the sale of alcohol during permit hours.
Having said that, however, one of the sub-grounds does, in my view, have merit. That is ground (d)(ii). It is clear that when the Commissioner made her decision, she had available to her all the material attached to the October report of her departmental officer. That included detailed police reports and police witness statements. None of this material was made available to the applicant, although it is clear that the incidents the subject of this material formed the basis for the summary of incidents of disorderly conduct made available to the applicant. Brennan J said in Kioa v West (1985) 159 CLR 550 at 628:
"A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malaya [1962] AC 322, at p 337; Ridge v Baldwin [1964] AC per Lord Morris at pp 113 - 114; De Verteuil v Knaggs [1918] AC at pp 560, 561. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary [1981] AC at p 97:
'To "over-judicialise" the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.'
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account."
There was significantly more information in the material held by the Commissioner than that supplied to the applicant. It was clear from his response that the applicant did not have any detail in relation to some incidents and not the same detail as the Commissioner had in relation to others. Notwithstanding that, the Commissioner relied on that material and did not at any stage give the applicant an opportunity to address those discrepancies. I am conscious that, having regard to the material in those police records and statements, had the applicant had the material, the end result may not have been different. However, procedural fairness dictates that the applicant should have had an opportunity to deal with that material. He was not permitted to do so. To dismiss the applicant's application now on the basis that, had he had an opportunity to consider the material before the Commissioner made her decision, it might not have affected the end result, might only encourage a perception that the practice adopted by the Commissioner's office is one which was quite acceptable.
The Commissioner's decision was, in my view, made in circumstances where she had an obligation to disclose significant information to the applicant and did not. She has therefore breached rules of natural justice and ground (d)(ii) of the application to review should succeed.
I take the view that it is unnecessary for the balance of the grounds in sub-par(d) to be dealt with in detail because the result attaching to ground (d)(ii) persuades me that I should exercise my discretion in favour of the applicant and quash the decision of the Commissioner. The orders will be that, pursuant to the Act, s27, the decision of the Commissioner as contained in her letter to the applicant dated 13 October 2008 is set aside.
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