Korin v Licensing Commission

[1992] QCA 9

IN THE COURT OF APPEAL

[1992] QCA 009

SUPREME COURT OF QUEENSLAND

No. 69 of 1991

Before the Court of Appeal

The President
Mr Justice McPherson

Mr Justice Thomas

BETWEEN:

YURI GEORGE KORIN

(Plaintiff) Appellant

- and -

LICENSING COMMISSION

(Defendant) Respondent

JUDGMENT - THE COURT

Delivered the 3rd day of March 1992

CATCHWORDS

Counsel:	Boughen for the Appellant Rolls for the Respondent
Solicitors:	J.T. Taylor and Co. for the Appellant Crown Solicitor for the Respondent

Hearing dates: 21 February, 1992
IN THE SUPREME COURT

OF QUEENSLAND

Appeal No. 69 of 1991

BETWEEN:

YURI GEORGE KORIN

Appellant

AND:

LICENSING COMMISSION

Respondent

JUDGMENT OF THE COURT

Delivered the 3rd day of March 1992.

This appeal is brought under s. 5C of the Liquor Act 1912 as amended. The appellant is the licensee of the Confetti Restaurant, Surfers Paradise and the appeal is against certain orders made by Quirk D.C.J. constituting the Licensing Court. Those proceedings were brought by the Licensing Commission which called upon the licensee to show cause why his licence should not be forfeited. The Licensing Court has the power to forfeit such a licence if the licensed premises have been utilized in an improper manner, (s. 47A(2D)) or if liquor is sold in a reception area of a licensed restaurant otherwise than to persons who intend bona fide to partake of a meal in a dining room (s. 125 AE(2)(a), s. 125AN). The court also has the power to suspend the licence (s. 47B(2)) or to impose a fine not exceeding $5,000.00 (s. 47B(2A)) and to require the licensee to pay the Commission's costs.

The right of appeal to this Court is limited to the ground "that such direction, determination, order or decision is erroneous in law but on no other ground" (s. 5C).

Counsel for the appellant argued only ground 3 of the notice of appeal which is expressed as follows:

"The learned Licensing Court judge erred in law in ruling that the licence ... should be suspended for a period of three months ..."

It may be seriously doubted that this ground is truly based upon any error in law, although counsel argued that His Honour must have taken into account some irrelevant consideration. It is not necessary to decide the matter on this threshold question, as an examination of the circumstances fails to reveal error of any kind.

The material shows that this was not the first occasion on which the appellant had failed to show cause. On 29th November, 1990 the Licensing Court found that relevant breaches had occurred but decided not to forfeit or suspend the licence. Instead the maximum fine ($5,000.00) was ordered to be paid, along with costs. In making the order the Licensing Court expressed the following caveat:

"I might add a word of warning to the licensees that if there is any form of repeat of this sort of breach, there will be no question of any fines in the future and a very serious attitude will be adopted by the court."

On 17th January, 1991 a Licensing Commission inspector accompanied by his wife entered the restaurant and purchased alcohol four times. At no time were they asked if they intended to dine and they did not do so. This was not challenged by the appellant at the hearing.

On 15th June, 1991 two Licensing Commission inspectors and two others purchased liquor from the bar and consumed it in the outdoor dining area of the restaurant. The circumstances were interpreted by the court as a cynical pretence at observing the requirements of the act. Shortly stated, one employee at the restaurant informed the drinkers that they must be intending to dine to be served liquor.

When she was told that they did not want to eat, a male employee remarked "the important word is 'intending'". The response of the drinker was "O.K. if that is what it takes, I intend to dine". They were then again served, and did not dine. It is not now challenged that His Honour was entitled to conclude, as he did, that liquor may be sold in a licensed restaurant in the reception area only to persons "who intend bona fide to partake of a meal in a dining room at the restaurant or who have partaken of a meal in such a dining room" (s. 125AE(2a)). Some degree of mitigation may be thought to exist in relation to the final incident having regard to what the appellant's counsel described as a kind of entrapment. However no such mitigation appears with respect to the other breaches proved in evidence.

Counsel for the appellant submitted that error was revealed in the following statement of the Licensing Court's reasons. Having expressed sympathy with the financial difficulties of the appellant, His Honour continued:

"However I have a responsibility to the community to ensure that the provisions of the Act are taken seriously and that the court is not seen as lacking the resolve to see that these provisions are properly enforced."

Having regard to the previous history of the appellant, such remarks are hardly surprising, and they fall a long way short of revealing any impermissible reliance upon inappropriate considerations.

It was also submitted that the Licensing Court failed to take into account or to give sufficient weight to the financial impact of the suspension on the appellant or the "quasi-entrapment" involved in some of the offences. There is no indication that that is so.

Nor does the suspension following the fine on an
earlier occasion reveal any "general misapprehension" by the
Licensing Court of its statutory discretion.
We are unable to see any respect in which the order of the
Licensing Court indicates any misapprehension of the

discretions given to that court by s. 47B of the Liquor Act.

It follows that no relevant error has been shown and that

there is no basis for the appeal.

For the foregoing reasons, the appeal was dismissed

with costs.