Magin v Commissioner, Office of Liquor and Gaming Regulation
[2013] QCAT 196
| CITATION: | Magin v Commissioner, Office of Liquor and Gaming Regulation & Anor [2013] QCAT 196 |
| PARTIES: | Donald Earle Magin (Applicant) |
| v | |
| Commissioner, Office of Liquor and Gaming Regulation Liv Nightclub Pty Ltd |
| APPLICATION NUMBER: | GAR346-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 30 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 30 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application of the Second Respondent to strike out or dismiss the application for review by Donald Earle Magin is dismissed. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – Liquor Act 1992 – objections to change and extension of licence conditions - application for review of decisions of First Respondent – whether application wholly or partly incompetent – whether application should be struck out as frivolous, vexatious or misconceived – case not suitable for precise excision of matters alleged to be unarguable – issues best determined at trial – application to strike out dismissed Queensland Civil and Administrative Tribunal Act 2009, s 17, s 19, s 20, s 32, s 47, s 102 Belmont Family Taverna [2000] QLAT 10 Hi Kari Pty Ltd t/a Ross Island Hotel v Chief Executive, Liquor Licensing & Hedley Hotel Group Pty Ltd [2005] QCCTL 5 Marginson v Blackburn Borough Council [1939] 2 KB 426 |
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
This an application (“the present application”) by the Second Respondent (“Liv”) to dismiss or strike out proceedings initiated by Donald Earle Magin on 4 October 2012 (“the original application”) for review of decisions of the First Respondent (”The Commissioner”) regarding Liv’s licensed premises at Surfers Paradise. The Commissioner has permitted Liv to change its principal activity from “meals” to “entertainment”, to increase its permissible noise emissions, and to extend its lawful trading hours to 5 am, Monday to Sunday.[1]
[1] Decisions dated 29 August 2012 and 7 September 2012.
Subject to important limits that I shall note, the Tribunal may review[2] decisions of the Commissioner, including those described in paragraph [1], above.[3]
[2] QCAT Act, ss 17, 19, 20.
[3] Liquor Act 1992 (“LA”), s 21.
So far as the present application is concerned the Commissioner simply abides the decision of the Tribunal.
In this application Liv contends that the original application is incompetent, frivolous, vexatious, misconceived or lacking in substance.[4]
[4] QCAT Act, s 47.
The original application is based on Magin’s objection, dated 22 June 2012, to the decisions mentioned in [1], above. In that document Magin states that he resides in Surfers Paradise and works in the Surfers Paradise Entertainment Precinct, in the vicinity of Liv’s premises.[5]
[5] Magin’s submissions attached to the original application, page 3.
Liv does not dispute those assertions; indeed it concedes that Magin was an eligible objector and that he has standing to apply for review.[6] Implicitly, then, Liv accepts that Magin, in some respects at least, is personally affected by the subject decisions. Therefore he is not open to the threshold objection that disqualified the applicants in Belmont Family Taverna[7] and other cases in that line.[8] Those applicants failed to demonstrate that they were “members of the public” – a phrase artificially defined[9] so as to preclude intervention by mere officious bystanders.
[6]LA, s 30. The concession appears in Liv’s first set of submissions (paragraph 2) and its submissions in reply, paragraph 2.
[7] [2000] QLAT 10.
[8]Hi Kari Pty Ltd (trading as Ross Island Hotel v Chief Executive, Liquor Licensing & Hedley Hotel Group Pty Ltd [2005] QCCTL 5; Gardener and Ors V Chief Executive, Office of Liquor & Gaming Regulation and Anor [2011] QCAT 542. Contrast Friday’s Riverside, Ashgrove [2003] QLAT 9 and Westcourt Tavern [2003] QLAT 27.
[9] LA, s 119(5).
However, Liv says that, for the purposes of review, Magin’s case is not confined, as it ought to be, to “impacts of the relevant kind ... experienced specifically by [him]”.[10] Liv points out that the word “submission”, as used in section 30 of the LA,[11] does not include[12] one made under section 118A of that Act. (Section 118A permits an objector, as distinct from an applicant for review, to make submissions about “the impact on the community concerned if the application were granted, having regard to ... section 3(a).”[13] If the application is not one for an “adult entertainment permit” the permissible ambit of objections is wider still.[14])
[10] Liv’s first set of submissions, paragraph 7.
[11] “Who may apply for review of decisions”.
[12] LA, s 29A.
[13]LA, ss 116(6), 118A . Section 3(a) declares a main purpose of the LA to be regulation of the liquor industry, near licensed premises, in a way compatible with minimising harm from alcohol misuse and associated violence, as well as adverse effects on public health and safety, and amenity of the community.
[14] LA, s 119(3).
But at the review stage it is not open to the applicant to canvass community impact, or to rely generally on the desiderata in section 3(a). Thus it appears that the policy of the Liquor Act, in the interests of the Commission and aspiring licensees, is to limit the objector class to those apt to be personally affected, and - at the review stage - to prevent even those persons from treating the Commission or the Tribunal as a roving commission of inquiry into complaints of a non-personal kind, however factual and important they may be.
It is true, as Liv alleges,[15] that Magin seems to be contemplating an adventure of that kind. But it is not true to say that “the only specific reference to [Liv’s] premises and to the relevant application appears at page 5 of [Magin’s] grounds”.[16] The increased “volume of patrons that already saturate” the area may well have a personal impact on Magin as a taxi driver or a local resident walking in Liv’s vicinity. Magin also complains in several places[17] about heightened noise, which quite arguably affects him as a worker in the area, or when he is “regularly on the streets of the entertainment precinct throughout the night over weekends”.[18]
[15] Liv’s first set of submissions, paragraph 9.
[16] Liv’s first set of submissions, paragraph 10.
[17]Submissions attached to the original application, page 1; Objection 22 June 2012 pages 1, 3; submission in reply paragraph 11.
[18] Submissions attached to the original application, pages 3, 14.
Liv also relies upon Magin’s “earlier unsuccessful application to the Tribunal” in Magin v Chief Executive, Office of Liquor and Gaming Regulation and Sharwood Capital Group Pty Ltd.[19] Presumably this submission is intended to invoke the res judicata principle. If that be so, it overlooks the fundamental requirement that estoppel by record and issue estoppel predicate that the parties in each case are precisely the same.[20] That is not so here.
[19] [2012] QCAT 646.
[20]Marginson v Blackburn Borough Council [1939] 2 KB 426; Palmbay Nominees Pty Ltd v Fowler [2003] WASCA 217 at [46]; Hill End Gold Ltd v First Tiffany Resource Corporation [2010] NSWSC 375 at [32]; Finn v Lemmer (1991) 55 SASR 455 at 460.
However, I return to the issues of relevance and permissible grounds of review. The Tribunal is dealing with a prolix, scattergun critique by an unrepresented[21] objector. This is not a case where the viability of a distinct cause of action, or one of several causes of action, can be neatly isolated and summarily determined, while other issues are clearly identified and reserved for trial. Possibly that is one reason why the Commissioner, who has been astute to seek dismissal of other proceedings susceptible to relatively scientific treatment, has refrained from supporting this application.
[21] Magin’s submissions in reply, paragraph 1.
The question in an application of this kind is not whether the pleadings that are impugned should be upheld, but whether they are so obviously untenable that they cannot possibly succeed,[22] or are such that no reasonable person could regard them as bona fide[23] or worthy of further consideration.[24] That is a considerable onus, and courts and tribunals are understandably reluctant to nip even dubious claims in the bud. In my view the relevance of Magin’s various complaints can best be decided at a trial, in the light of further evidence and argument. If Mr Magin raises and persists in irrelevancies, or presses arguments that the Tribunal clearly cannot entertain, or attempts to conduct a wide-ranging crusade against evils of the liquor trade - however well-intentioned - he is apt to provoke applications for substantial costs[25] on behalf of the respondents. It is to be hoped that he will bear this in mind.
[22]Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92 per O’Connor J; Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at 264-265.
[23] Norman v Matthews (1916) 85 LJ KB 857 at 859 per Lush J.
[24] Roadships Logistics Ltd v Tree [2007] NSWSC 1084.
[25] QCAT Act, s 102.
For the reasons I have endeavoured to explain, the present application will be dismissed. There will be no order for costs.
ORDER
The application of the Second Respondent to strike out or dismiss the application for review by Donald Earle Magin is dismissed.
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