Magin v Chief Executive, Office of Liquor & Gaming Regulation

[2012] QCAT 215

CITATION: Magin v Chief Executive, Office of Liquor & Gaming Regulation and Anor [2012] QCAT 215

PARTIES:	Donald Earle Magin (Applicant/Appellant)
v
Chief Executive, Office of Liquor & Gaming Regulation (First Respondent) Starwood Capital Group Pty Ltd (Second Respondent)

APPLICATION NUMBER: GAR384-11

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Michelle Howard, Member

DELIVERED ON: 24 May 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The miscellaneous application made by Mr Magin is dismissed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – LIQUOR – documents required to be provided under s 21(2) of QCAT Act – where enabling Act has modified the QCAT Act

Liquor Act 1992, s 33
Queensland Civil and Administrative Tribunal Act 2009, ss 6, 7, 19, 20, 24

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Magin has applied for review by the tribunal of a decision of the Chief Executive, Office of Liquor & Gaming Regulation (OLGR) dated 27 October 2011.  The decision granted an application for a Commercial Other (Subsidiary On-Premises) entertainment licence and an extended trading hours approval under the Liquor Act 1992 (the Liquor Act), to Starwood Capital Pty Ltd in respect of premises at Surfers Paradise.

2. The review application is listed for hearing by the Tribunal on 22 August 2012.

3. Mr Magin filed a miscellaneous application seeking an order that OLGR delete reference to and reliance upon the Drink Safe Precinct, its criteria, and any activity indicators from the statement of reasons for decision because, he says, the Drink Safe Trial is inconclusive, incomplete and commenced four months after the application was submitted.  He also sought orders vacating the compulsory conference scheduled for 16 May 2012, but that conference has already occurred.

4. The respondents have had the opportunity to provide submissions in response to the application, which is now to be determined on the papers without an oral hearing.

5. Mr Magin recently wrote to the Tribunal suggesting that determination of the miscellaneous application be delayed, it appears, pending consideration of fresh evidence for the review.  He makes this submission, it appears, on the basis that that the fresh evidence may be relevant to determining whether the orders he seeks should be made.  Subsequently he provided some further documents to the Tribunal which appear to constitute the fresh evidence he refers to.

The review jurisdiction of the Tribunal

1. A review must be decided in accordance with the QCAT Act and the enabling Act conferring jurisdiction on the Tribunal, in this case, the Liquor Act.[1] If an enabling Act modifies provisions of the QCAT Act, the modifying provision prevails over the provisions of the QCAT Act, to the extent of any inconsistency.[2]

   [1] QCAT Act, s 19(a).

   [2] QCAT Act, ss 6, esp 6(2), 6(4) and 6(7), and 7 esp 7(2), 7(3).

2. When an application is made in the Tribunal’s review jurisdiction, the original decision-maker, in this case, OLGR, is required by section 21(2) of the QCAT Act to provide a copy of a written statement of its reasons for the decision and a copy of any document or thing in its possession or control that may be relevant to the Tribunal’s review of the decision.

3. Under the Liquor Act, the review of a decision by the Tribunal must be by way of reconsideration of the evidence before the OLGR when the decision was made and decided in accordance with the law that applied to the making of the original decision.[3]  However, the Tribunal may grant a party leave to present new evidence in some circumstances.[4]

   [3]        Liquor Act 1992, s 33(1).

   [4]        Liquor Act 1992, s 34.

4. For the review, the Tribunal has all the functions of the decision-maker for the reviewable decision.[5]  The purpose of the review is to produce the correct and preferable decision, following a fresh hearing on the merits.[6]  In effect, the Tribunal stands in the shoes of the decision-maker and makes the decision afresh.

   [5] QCAT Act, s 19(c).

   [6] QCAT Act, s 20.

5. Following the hearing, the Tribunal may decide to confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the decision-maker.[7]

   [7] QCAT Act, s 24.

Discussion and decision

1. When the review application is heard by the Tribunal on 22 August 2012, it will conduct a merits review and make its own decision about the correct and preferable decision on the application for a licence.  There is no presumption that the decision made by OLGR is correct, or that it has considered the appropriate matters when it made its decision.  It is not necessary for OLGR to have made an error in reaching its decision for the Tribunal to reach a different conclusion.  The Tribunal’s role is to consider it afresh.

2. The OLGR has a responsibility under section 21(2) of the QCAT Act to provide a copy of its reasons for decision and the documents relevant to the review. The reasons for decision it provides must be its actual reasons, not a version of the reasons amended in accordance with the request of an applicant. OLGR has provided its actual reasons for decision.

3. It has also provided copies of documents. Section 21(2)(b) requires that documents and things which may be relevant to the review be provided. However, the Liquor Act provides that a review must be conducted in a particular way, that is, reconsideration of the evidence before OLGR when the decision was made. Accordingly, section 21(2)(b) has been modified by the Liquor Act in light of the nature of the review which the Liquor Act provides for. Therefore, the documents to be provided under section 21(2)(b) as modified by the Liquor Act consist of the evidence before the OLGR when the decision was made. Again, these must be the documents actually considered by the decision-maker, not a version amended in accordance with a party’s views.

4. Therefore, OLGR has provided the documents required.  OLGR’s reasons and material refer to the Drink Safe Precinct, as this was considered.  Whether or not the Tribunal at hearing considers the Drink Safe Precinct relevant, or not, is yet to be determined.  It will be determined at the hearing when the review is conducted.

5. Mr Magin’s application for miscellaneous matters must fail and I make orders dismissing it.  Of course, Mr Magin is at liberty to, and no doubt will, make submissions to the Tribunal at the hearing about the relevance of the Drink Safe Precinct to the decision.