Mt Isa Irish Association Friendly Society Limited v Chief Executive Department of Justice and Attorney General
[2011] QCAT 457
•27 September 2011
| CITATION: | Mt Isa Irish Association Friendly Society Limited v Chief Executive Department of Justice and Attorney General [2011] QCAT 457 |
| PARTIES: | Mt Isa Irish Association Friendly Society Limited (Applicant) |
| v | |
| Chief Executive Department of Justice and Attorney General (Respondent) |
| APPLICATION NUMBER: | GAR132-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 15 September 2011 |
| DECISION OF: | Glenice Spender, Member Susan Gardiner, Member |
| REASONS DELIVERED ON: | 27 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Chief Executive of 19 April 2011 is confirmed except in respect of the cancellation of extended hours trading approval which is set aside. |
| CATCHWORDS: | APPLICATION FOR REVIEW – LIQUOR LICENSING – DISCIPLINARY ACTION – scope of review – interpretation of ss 137, 137A and 137B of Liquor Act 1992 Review of decision to impose monetary penalty, vary license conditions and to cancel extended hours trading approval – Where decision to impose monetary penalty and to vary license conditions affirmed and decision to cancel extended hours trading set aside Queensland Civil and Administrative Tribunal Act 2009, s 20 Liquor Act 1992, ss 21, 137, 137A , 137B Queensland Racing Limited v McMahon (2010) QCATA 73 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr P F Mylne of Counsel |
| RESPONDENT: | Mr D J Robinson of Counsel |
REASONS FOR DECISION
The Irish Club in Mt Isa is a unique institution. The Club is a community owned organisation. It has an annual turnover of approximately $26 million but has no cash reserves. No profits are distributed to members. Earnings are spent on maintenance or development of the property of the Club or by way of assistance to the Mt Isa community’s sporting, cultural and charitable organisations. This support exceeds $300,000 each year.
The Club has over 16,000 members and has calculated that for the period January 2008 to October 2009, 607,000 people attended the Club. It has support from local elected members at every level of government and from the majority of its neighbours in the residential area where it is located.
However, over the last few years there have been some serious problems with patron behaviour at the Club during late night trading. Up until a decision of the Chief Executive under the Liquor Act 1992 on 19 April 2011, the Club had been trading under an approval endorsed on its community club licence allowing late trading until 2.00am on Sunday to Thursday nights and until 3.00am on Friday and Saturday nights.
On 19 April 2011 a decision was made by the Chief Executive of the Office of Liquor and Gaming Regulation to take disciplinary action on two grounds relating to the licence held by the Club[1]. The first ground[2] found a failure to provide and maintain a safe environment in and around the Club contrary to section 148A (1) of the Liquor Act 1992. The second ground[3] found that the use of the Club or the behaviour of persons entering or leaving the Club was causing disorderly conduct in or in the neighbourhood of the Club.
[1]A third ground (called ground 2 in the notice of 3 December 2010) was not relied upon by the Chief Executive at the hearing of this matter.
[2] Under section 136(1)(a)(i) of the Liquor Act 1992.
[3] Under section 136(1)(h)(ii) of the Liquor Act 1992.
The Chief Executive fined the Club monetary amounts on both of these charges and varied the licence conditions concerning security arrangements including recording of patrons entering and leaving the Club and other matters. But most importantly for the Club, the extended trading hours approval endorsed on the licence was removed. The effect of this is that since 29 April 2011, the Club has ceased trading every night at midnight creating what the Club says is a substantial financial loss, loss of employment to staff, loss of amenity for the Mt Isa Community and a downgrading of financial community support.
The Chief Executive relied on a substantial number of incidents, often occurring around late closing time of various levels of assault, fighting between individuals, brawls involving sometimes substantial crowd numbers, police incidents, unduly intoxicated persons, general disturbances and injuries to patrons, sometimes serious, to support the disciplinary action.
The Club has reviewed this decision to QCAT. A review is undertaken by way of a reconsideration of the evidence before the Chief Executive when the decision was made[4].
[4] The Liquor Act 1992, s 33.
Issue one: Scope of the Tribunal’s Jurisdiction
Pursuant to sections 137 and 137A of the Liquor Act 1992 the following preconditions must be established before the Chief Executive has power to take disciplinary action:
a.Notices of proposed disciplinary action in a prescribed form must be given to the licensee, and
b.After any submissions made by the licensee are considered, the Chief Executive must be satisfied that the grounds specified in the notices are established.
The Chief Executive argues that the Tribunal does not have jurisdiction to determine whether a contentious notice of 3 December 2010 complied with section 137A(2), but must confine the review to whether the grounds specified in that notice are established, and if so, must determine the correct and preferable disciplinary action[5]. The Chief Executive says that in a merits review, the decision-making process is of no concern to the Tribunal because the Tribunal must make the decision afresh.
[5] Queensland Civil and Administrative Act 2009, s 20.
[10]The Club argues that the Tribunal has jurisdiction to determine whether the strict procedural requirements of sections 137 and 137A have been satisfied, and in particular, to determine whether the notice of 3 December 2010 complies with the requirements of section 137A(2). If, as the Club argues, the notice does not comply, the Chief Executive has no power to take disciplinary action and the decision under review must be set aside.
[11]The Tribunal’s jurisdiction to review decisions of the Chief Executive in relation to the taking of disciplinary action under the Liquor Act 1992 is conferred by section 21(1)(c) of the Liquor Act 1992. Importantly in section 21(2)(c) it is provided that, in exercise of its jurisdiction, the Tribunal is subject to the limitations imposed by the Liquor Act 1992 on the Chief Executive in respect of the matter under review. The statutory procedural requirements are the “limitations”[6] imposed on both the Chief Executive and the Tribunal in exercising the power to take disciplinary action.
[6] The Liquor Act 1992, s 21(2)(c).
[12]The scope of a “disciplinary action” was discussed in Queensland Racing Limited v McMahon[7]. In that decision, the Appeal Tribunal found that the necessary preconditions to taking disciplinary action are reviewable and the Tribunal is not limited to considering only the appropriateness of penalty. The Appeal Tribunal said[8]
[7] (2010) QCATA 73.
[8] Queensland Racing Limited v McMahon (2010) QCATA 73 at paragraph 44.
Racing Queensland’s argument is that the steward’s “opinion” that the standards identified in ARR 137 have been breached is “a precondition” (jurisdictional fact) to the determination to penalise, and is not a reviewable determination itself.
I am not persuaded by this approach. In R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430, 432, Latham CJ drew a distinction between a court replacing the decision maker’s opinion with its own opinion (impermissible), and a court ensuring that the decision maker engaged in the enquiry required of it by statute (legitimate).
[13]The Appeal Tribunal went on to say[9]:
[9] Queensland Racing Limited v McMahon (2010) QCATA 73 at paragraph 49.
The phrase “disciplinary action” must, on its plain meaning, include both the factor that led to the stewards determining that the jockey was guilty of the charge, as well as the penalty. Both the conduct and the penalty are part and parcel of a “disciplinary action”. If it were otherwise, the application for review could never be more than what would be in the context of the criminal jurisdiction an appeal against sentence.
[14]In the matter before this Tribunal, one of the preconditions to the making of the decision to take disciplinary action is that the decision-maker engages in the procedure required by the Liquor Act 1992. Under the Liquor Act 1992, the taking of disciplinary action involves a number of steps and it is clear, in the Tribunal’s view, that the legislature intends that the Tribunal should be able to review all steps relating to the disciplinary action[10]. The statutory procedure is “not merely a step taken in the course of reasoning on the way to the making of the ultimate decision”[11], but is a procedure which is mandatory under the Liquor Act 1992.
[10] See for example, Queensland Racing Limited v McMahon (2010) QCATA 73.
[11] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 336.
[15]Having been satisfied that the Tribunal has jurisdiction to examine compliance with the statutory procedure in sections 137 and 137A of the Liquor Act 1992, the Tribunal now turns to an analysis of those procedures.
Issue 2: The Notice of 3 December 2010
[16]Before the Tribunal considers the notice, it is necessary to consider the requirements of the statutory framework under which the notice was issued.
[17]Sections 137 and 137A set out a statutory framework for the taking of disciplinary action which is designed to ensure procedural fairness to the licensee. These sections are not well expressed. This clumsy expression has allowed argument to arise before this Tribunal as to the meaning of these sections. In particular, the Club has submitted that the section 137A (2) notice must state a final decision and the reasons for that final decision. We do not accept this submission.
[18]In our view, under section 137(1) the Chief Executive first considers whether there is a ground to take disciplinary action against the licensee. This is an intermediate decision which does not affect the licensee’s legal rights[12].
[12] Ibid per Mason CJ at 335-338.
[19]Under section 137A(1) the Chief Executive, after considering submissions made in response to the Show Cause Notice issued under section 137(1)(i), may decide to take the action proposed in the Show Cause Notice. The licensee is notified of this final decision under section 137B(1) by the giving by the Chief Executive of a notice of decision within 10 days. This is a final decision which affects the licensee’s legal rights.
[20]Alternatively under section 137A(1), after receiving submissions from the licensee in response to the Show Cause Notice, the Chief Executive may propose to take another action. This is also an intermediate decision which does not affect the licensee’s legal rights.
[21]This interpretation is supported by a plain reading of section 137B(2) which does not require the notification of the alternative decision under section 137A(1) to the licensee because, in our view, and contrary to the Club’s submission, no final decision is involved in the alternative decision under section 137A(1).
[22]Because a different action is proposed, section 137A(2) requires the Chief Executive to issue a further notice stating the new proposed action, and the reasons why this new action is proposed and inviting further submissions from the licensee. The Chief Executive, after considering the further submissions, may decide under section 137A(4) to take the new action proposed. This is also a final decision which affects the licensee’s legal rights and it must be notified to the licensee under section 137(B)(1).
[23]Turning then to the notice of 3 December 2010, we are satisfied that it complies with the statutory requirements of sub-sections 137A(2)(a), (b) and (c).
Issue 3: Are the grounds for disciplinary action established?
[24]Disciplinary action by the Chief Executive is based on incidents that constitute, in the view of the Chief Executive, breaches of the Liquor Act 1992. These breaches form the grounds for the taking of the disciplinary action.
[25]An issue arises as to whether it is permissible to rely on incidents not contained in the original Show Cause Notice in order to show that the disciplinary grounds stated in the second notice are established. The second notice sets out additional incidents occurring after the first notice was issued.
[26]Based on the Club’s earlier argument concerning the statutory interpretation of section 137A(2), the Club says the Tribunal cannot consider these additional incidents because a final decision has been made before submissions are invited under the new notice. This submission does not accord with our interpretation of the statutory framework (discussed above) and is therefore not accepted.
[27]The “reasons for the decision” referred to in section 137A(2)(b) are the reasons why alternative action is proposed and not the reasons for a final decision. We are satisfied that we can consider all incidents set out in the notice dated 3 December 2010.
Are the Grounds established when we consider those incidents?
[28]The first Ground[13] specified a failure to provide and maintain a safe environment in and around the Club contrary to section 148 of the Liquor Act 1992. The Chief Executive relied on 82 incidents occurring between 2 January 2008 and 29 April 2010, a period of 28 months.
[13] Under section 136(1)(a)(i) of the Liquor Act 1992.
[29]The onus of proof concerning these incidents rests with the Chief Executive (and therefore this Tribunal) on the balance of probabilities. However, we adopt the comments of the Tribunal in Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman[14] that because a disciplinary proceeding is capable of producing serious consequences for a party, the necessary “reasonable satisfaction” is not to be reached lightly or on flimsy evidence.
[14] [2010] QCAT 564 at paragraphs 13 and 14.
[30]After careful consideration of each of the 82 incidents particularised in the notice of 3 December 2010, we are satisfied that each of these incidents constitutes a breach of section 148A(1) of the Liquor Act 1992. There are a small number of serious assaults, but overwhelmingly, the incidents involve less serious occurrences sometimes occasioning injury and often occurring in the vicinity of the Club as patrons are leaving at closing time. The major concern of the Tribunal is the frequency of these incidents and the sometimes serious nature of the injury that is inflicted on the persons involved. We are satisfied that the Club has failed to comply with the Liquor Act 1992 and Ground One is established.
[31]The second Ground[15] specified that the use of the Club or the behaviour of persons entering or leaving the Club caused disorderly conduct in or in the neighbourhood of the Club. The same incidents particularised for Ground One are also relied upon to establish this Ground. For the reasons given above, we are also satisfied that this Ground is established.
[15] Under section 136(1)(h)(ii) of the Liquor Act 1992.
Appropriate disciplinary action
[32]The Chief Executive fined the Club a monetary amount of a total of $10,000 on both Grounds; varied the licence conditions concerning security arrangements including recording of patrons entering and leaving the Club and other matters; and cancelled the extended trading hours approval endorsed on the licence.
[33]The Club submitted in its response to the notice of 3 December 2010[16] that the Club is to be distinguished from other licensed establishments because:
[16] In a submission dated 24 February 2010.
·It has over 16,000 members and provides a unique venue for entertainment and social gatherings in Mt Isa, a medium sized regional town;
·It is not a profit making exercise – it is a community based organisation supporting Mt Isa’s sporting, cultural and charitable organisations and restricting trading hours threatens the financial viability of the Club;
·The Club proactively was the first in Queensland to introduce plastic glassware in a nightclub and serious glassing injuries have not occurred;
·The Club has a strong involvement in the local Liquor Accord;
·The Club has support from elected members at every level of government and from the majority of its neighbours in the residential area where it is located.
[34]There is clear evidence before the Tribunal of a failure on the part of the Club during 2008 and 2009 to meet its obligations under the Liquor Act 1992 to control patron behaviour during late night trading. The imposition of a severe sanction to protect the public is justified.
[35]However there were only 8 incidents relied upon by the Chief Executive as occurring in the four month period immediately after the issue of the first Show Cause notice on 4 January 2010, and no further incidents are in evidence as having occurred up until the issue of the second Show Cause notice on 3 December 2010. There thus appears to have been a significant drop in the number of incidents of intoxication, altercations and assault occurring in 2010, which suggests that the Club made an effort after the issue of the first Show Cause notice to better control patron behaviour. There was also a 10 month delay between the first and second notices issued by the Chief Executive which suggests to us that the need to take disciplinary action in order to safeguard the community was not an urgent need in the eyes of the Chief Executive during the second half of 2010.
[36]A stay of the Chief Executive’s decision was not granted with the result that there has been no trading after midnight since 29 April 2011, a period of some 5 months. This represents a severe financial penalty for the Club.
[37]In all the circumstances, we consider that the monetary penalty and the variation of licence conditions are appropriate actions. However we consider that a suspension rather than cancellation of the extended hours trading approval is justified.
[38]A suspension for a period less than the period of time which has elapsed since cancellation is appropriate. In those circumstances, we set aside the cancellation of the extended hours trading approval, with the re-instated approval to be effective as of today’s date.
[39]The decision of the Chief Executive of 19 April 2011 is confirmed except in respect of the cancellation of extended hours trading approval which is set aside.
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