Music Kafe v OLGR
[2012] QCAT 217
•29 May 2012
| CITATION: | The Music Kafe Pty Ltd as Trustee for the Loukaras Family Trust and Anor v Chief Executive, Office of Liquor & Gaming Regulation [2012] QCAT 217 |
| PARTIES: | The Music Kafe Pty Ltd as Trustee for the Loukaras Family Trust Fotis Loukaras (Applicants/Appellants) |
| v | |
| Chief Executive, Office of Liquor & Gaming Regulation (Respondent) |
| APPLICATION NUMBER: | GAR029-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 29 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Until further order, the operation of the decision of the Chief Executive, Office of Liquor and Gaming Regulation dated 10 January 2012 is stayed, subject to Music Kafe Pty Ltd providing a written undertaking, sworn or affirmed by its director Mr Loukaras before a competent witness, to the tribunal by 4pm on 12 June 2012, that: (i) a staff member with RSA or RMLV qualifications will control the door at Music Kafe Pty Ltd to ensure that patrons are not unduly intoxicated; (ii) a named security company has been engaged and arrangements are in place for the company to provide a licensed crowd controller from 5pm until closing on weekdays and from 10am until closing on weekends and public holidays at the Music Kafe Pty Ltd; (iii) Music Kafe Pty Ltd will maintain the arrangements for the crowd controller pending further order of the tribunal; and (iv) Music Kafe Pty Ltd notify the tribunal within 72 hours of any unforseen changes to the arrangements made by the security company and of any alternative but equivalent security arrangements put in place by Music Kafe Pty Ltd as a consequence pending further order of the tribunal; 2. Each party has liberty to apply, in relation to the wording of the undertakings, until 4pm on 6 June 2012. |
| CATCHWORDS: | STAY APPLICATION – where disciplinary decision made to cancel a liquor licence and disqualify licensee from holding a licence for 5 years – where licensee seeks stay of operation of the disciplinary decision pending review – whether nature of disciplinary proceedings affects circumstances in which a stay is granted Queensland Civil and Administrative Tribunal Act 2009, s 22 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 |
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
On 10 January 2012, the Chief Executive, Office of Liquor and Gaming Regulation (OLGR) made a disciplinary decision in relation to Commercial Other-Subsidiary On-Premises Licence 81497 (the Licence) under the Liquor Act 1992 (the Act) to cancel the License held by Music Kafe Pty Ltd as Trustee for The Loukaras Family Trust (Music Kafe); disqualify Music Kafe from holding a licence or permit under the Act for 5 years; and disqualify Mr Fotis Loukaras from holding a permit or licence for a period of 5 years. Music Kafe and Mr Loukaras have applied to the tribunal for a review of the decision. Mr Loukaras is the sole director of Music Kafe.
With their review application, Mr Loukaras and Music Kafe filed an application to stay the operation of the decision pending the hearing of the review application and it is this stay application which is the subject of this decision.
On 27 January 2012, the tribunal made an interim order, staying the operation of the order until further order; adjourning the hearing of the stay application; and making directions regarding the provision of submissions. Further directions were subsequently made by the tribunal for the filing of further submissions about the stay application. The parties’ submissions in relation to all relevant matters are now to hand. Affidavit material of Mr Loukaras filed in related Supreme Court proceedings has also been filed.
The tribunal may make an order staying the operation of a reviewable decision, pending the review of the decision, under section 22 of the QCAT Act, and in particular ss 22(3) and 22(4).
The submissions
The applicants argue that they have good prospects of success on the review application primarily because, they argue, OLGR took into account material and information which it was not entitled to consider and that there is insufficient evidence to support the findings made against them and the penalties imposed.
They submit that the personal impact of the decision upon Mr Loukaras is significant. He relies upon the income from the business as primary financial provider for his family. If the business is unable to continue to trade pending the review of the decision then monies loaned for the business and secured against his family home will, he says, likely result in the mortgagee taking possession of the home.
If the stay is not granted, effectively it is submitted that the business may be unable to recommence trading if the applicants are successful on the review. Monthly loan repayments, rent and lease and other outgoings remain payable whether or not the venue is trading.
Further they submit that since the first show cause notice was received by them from the OLGR, there have been no incidents involving patrons and no breaches of the Act and/or the Licence, demonstrating that the applicants are capable of providing a safe environment. That show cause notice was dated 19 April 2011.
They submit that any public safety concerns are met by the applicants employing a staff member with RSA or RMLV qualifications to man the door and ensure that patrons are not unduly intoxicated. Apparently this arrangement is already in place although not expressly required under the Act or by the Licence. Also, there are 4 CCTV cameras in place which they say cover the majority of the venue.
The applicants are also prepared to provide an undertaking about the provision of additional security, if required by the tribunal, to engage a security company to provide a licensed Crowd Controller from 5pm until closing on weekdays and from 10am on weekends and public holidays.
The applicants submit that the venue offers opportunities for 30-40 local performers per week to play original music for a percentage of the takings on the night and without a fee to the performers. The business also employs 15 staff. Therefore, they submit if they are unable to operate there will be impacts on the local community.
The OLGR opposes the stay application. OLGR submits that the lost trade and lost income of the applicants and the staff of the Music Kafe do not outweigh the public interest in maintaining public order, amenity and safety, in light of numerous incidents at the licensed premises between August 2008 and September 2011 which are outlined in the reviewable decision. The incidents include intoxication, threatening behaviour, and violence associated with the premises, and some of which involve Mr Loukaras.
Further, it submits that the incidents indicate that Mr Loukaras is not a fit and proper person to conduct business under the licence. Further, it submits that the licensee is not capable of maintaining a safe environment in and around the licensed premises.
It argues that it is relevant in considering the stay application that the proceedings before the tribunal are disciplinary proceedings, which have a protective function. It relies upon the tribunal’s observations about the public aspect of a stay in disciplinary proceedings in Deputy Commissioner Stewart v Kennedy.[1] It submits that these observations apply to the regulation of the liquor industry. Having regard to these matters, it submits in effect that regulation of the liquor industry includes giving certain persons the privilege of serving the public by trading under the authority of a liquor licence. Further, it says that an important function of regulation of the industry is disciplinary action.
[1] [2011] QCATA 254.
OLGR argues that the undertaking offered is inadequate to allay concerns for patron and staff safety and amenity of the vicinity. It submits that if the tribunal is minded to order a stay but require an undertaking that the tribunal should require as part of the undertaking that:
(a) that Mr Loukaras not be present at the licensed premises during trading hours of the premises;
(b) that an approved manager be present for all trading hours of the licensed premises;
(c) that a security provider be engaged as submitted by the applicants;
(d) that the applicants report to the tribunal and the OLGR that a security provider and approved manager have been engaged on the first day of each month for the duration of the stay; and
(e) that the tribunal should condition the stay such that if the applicant is non-compliant with the undertakings, that the stay comes to an end and the reviewable decision takes effect.
Discussion and decision
The tribunal may, after having regard to the factors set out in section 22(4) of the QCAT Act, make an order to stay the operation of a reviewable decision if it considers it is desirable to do so. For it to be desirable, the tribunal must form a positive view that the making of a stay order is desirable.[2] The matters which must be considered under section 22(4), are the interests of any person whose interests may be affected; any submission of the decision-maker for the reviewable decision; and the public interest. Under s 22(6), in making a stay order, the tribunal may require an undertaking.
[2] Elliott v QBSA [2010] QCAT 180.
However, as I discussed in The Hideaway Café Bar Pty Ltd v OLGR,[3] section 22(4) does not prevent the consideration of other relevant factors. The Appeal Tribunal found in Deputy Commissioner Stewart v Kennedy[4] that the standard curial principles also apply to govern the exercise of the discretion, in addition to a consideration of those factors in s 22(4).[5] In Kennedy, the Appeal Tribunal considered that other issues to be considered include whether an arguable case has been shown by the applicant; whether the balance of convenience favours the granting of the stay;[6] and whether the refusal of the stay would render a favourable appeal decision nugatory.[7]
[3] [2012] QCAT 46.
[4] [2011] QCATA 254.
[5] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.
[6] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.
[7] Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 at 331.
In review proceedings, the tribunal’s role is to produce the correct or preferable decision following a fresh hearing on the merits.[8] The consideration of whether there is an arguable case must be modified from its usual meaning in curial proceedings, having regard to the nature of the jurisdiction. In The Hideaway, I was satisfied that there were real issues for determination on the review application. It may be that given the nature of review proceedings that the requirement may be more readily satisfied than in curial proceedings, except in circumstances when the facts are not in dispute and the requirements of the enabling Act permit no exercise of discretion.
[8] QCAT Act, s 20.
The curial consideration about whether the refusal of the stay would render a favourable appeal decision nugatory must also be adapted to the review context. As discussed in The Hideaway, the equivalent consideration in review proceedings is whether refusal of the stay would render success on review ineffective.
This stay application is made in review proceedings which are disciplinary proceedings. It is well established that disciplinary proceedings are protective in nature.
In Deputy Commissioner Stewart v Kennedy,[9] the Appeal Tribunal set aside a stay which had been granted in a disciplinary proceeding in the review jurisdiction. The decision-maker had made a decision dismissing a police officer from the police service. The police officer had applied to the tribunal for review of the disciplinary decision. The tribunal had made orders staying the operation of that decision pending the review. The stay entitled the police officer to return to duty pending the determination of the review application.
[9] [2011] QCATA 254.
The Appeal Tribunal considered that there was a public aspect to be considered in staying a dismissal of a police officer. It considered the approach of the courts to stay applications in disciplinary proceedings concerning lawyers. It held this was relevant to all professional disciplinary proceedings and of ‘at least some relevance’ to the proceedings before it given that the police force is a unit in the maintenance of law and order. It considered therefore that maintaining public confidence in the police force was relevant.[10] However, while acknowledging some ‘obvious distinctions’ between the disciplinary systems regulating professionals and the police force, the Appeal Tribunal referred to a common thread in disciplinary systems for those groups whose members wish to serve the public and who have special powers and privileges.[11] The OLGR argues essentially that this principle applies to licensees under the Act.
[10] Para [31].
[11] Para [34].
There is no doubt that the disciplinary regime provided for in the Act is protective. However, there are some significant differences between disciplinary proceedings for professional persons and disciplinary proceedings for others. Indeed, the Appeal Tribunal acknowledged differences between the disciplinary regimes for professionals and the regime for police officers, although it considered that the public aspect which applied in disciplinary proceedings for professionals had some relevance to police officers given their role in maintaining law and order.
While trading under the authority of a liquor license conveys some privileges on licensees who are expected to abide by the law, in my view it is drawing a long bow to suggest that licensees serve the public in the broad sense that members of professions do, or police officers do. Professionals and police officers hold special knowledge, power and responsibilities. Strict and well-established standards of professional and ethical behaviour apply to both professionals and to police officers. Whereas licensees have responsibilities, these are primarily to comply with the requirements of the Act and the terms of their liquor license. While acknowledging that the Act provides a framework for disciplinary action to be taken in the event of non-compliance with the Act or in circumstances when the licensee is not a fit and proper person to conduct business under the authority of the licence,[12] it is apparent that the activities of licensees are more in the nature of business or commercial activities than professional activities.
[12] Liquor Act 1992, s 136.
That is not to suggest that there is no public aspect to the consideration of a stay application in disciplinary proceedings for licensees. However, it is not of the same nature as the public aspect discussed in Kennedy for police officers. In my view, it forms a part of the public interest consideration which the Tribunal must consider under section 22(4) of the QCAT Act in determining the stay application.
It seems to me in light of s 22(6) that, I am entitled to consider whether requiring undertakings from the applicants might address any public interest issues which arise in determining the stay application.
I turn now to consider those matters set out in section 22(4). It is clear that the applicants’ financial and commercial interests will be affected if the stay is not granted. They will be unable to operate the business conducted at the licensed premises. There are payments due for rent and outgoings whether or not the business operates. Additionally, as Mr Loukaras secured a loan used for business purposes against the family home, this may result in the mortgagee taking possession of the home. Some 15 people are employed by the business and they will be unemployed, at least temporarily, if the business ceases to operate.
Although I accept that local performers play at the premises, it is not established on the available evidence that local performers will be disadvantaged if the business ceases to trade.
The applicants say that since the first show cause notice on 19 April 2011, there have been no incidents and that this demonstrates their ability to provide a safe environment.
In its submissions, the OLGR refers to the reliance in its reviewable decision on incidents between August 2008 and September 2011. In this regard, the OLGR’s decision refers to one incident after 19 April 2011 involving the behaviour of Mr Loukaras. It is not for me to determine on the stay application where the truth lies regarding this incident said to have occurred after 19 April 2011, or the other incidents. Those factual matters will be determined at the final hearing. However, it seems uncontroversial that there have been no incidents since at latest September 2011, a period now of some 8 months.
OLGR made its decision to cancel the license on the basis of multiple incidents. My attention was drawn to Maurita Italian Bakery and Patisserie v Gold Coast City Council,[13] concerning an application for stay of cancellation of a food licence after multiple alleged breaches. In that case, the tribunal found that the public interest in ensuring food sold was safe for consumption outweighed detriment to the licence holder in being unable to operate. Undertakings were not discussed in the Maurita case.
[13] [2010] QCAT 279.
In respect of the public interest, the Act’s objects include the minimisation of harm from alcohol abuse and misuse, minimising the adverse effects on safety of members of the public and on the amenity of the community.[14] There is a public interest in achieving these objects and having licensed premises operated in a way, and therefore, licensees act in a manner, which recognises and upholds these objects.
[14] Section 3(a).
The applicants submit in essence that public interest including public safety concerns are addressed through employing a staff member with suitable qualifications to man the door, and if required, by providing undertakings about the provision of extra security by employing a Crowd Controller at nominated times. OLGR submits that the undertaking offered would not allay concerns for patron and safety and suggests that broader undertakings should be required if the tribunal is minded to grant the stay.
As the tribunal observed, granting a stay in Craddock v Chief Executive, Department of Employment, Economic Development and Innovation,[15] it is to be hoped that cancellation of licenses (in that case of security officer and crowd controller licenses) is a salutary warning, which should ensure that the applicants would not place the public at risk pending the hearing. Indeed, in this matter, there have been no incidents for some 8 months.
[15] [2010] QCAT 229.
That said, I will come back to undertakings.
Having regard to the other factors identified as relevant on the stay application, the applicants intend to argue on the review that OLGR took into account material which it was not entitled to consider to support its findings against them and the decision. I accept that there are real issues for the tribunal to consider in reviewing the decision.
Also, it is relevant that on the material before me, if the stay application is refused, success of the applicants on review may be ineffective as they may be unable to recommence trading.
Despite OLGR’s concerns, I consider that the undertaking proposed by the applicants is generally adequate and appropriate to meet public interest considerations of maintaining order and a safe environment, save that it should also formalise the arrangements for a RSA or RMLV qualified staff member to control the door; and the taking of appropriate action by Music Kafe if the security company engaged terminates the arrangements for any reason. Requiring Mr Loukaras to be absent as proposed by the OLGR, and that an approved manager be present would impose a significant cost which may be unsustainable and should be unnecessary for the reason identified in the Craddock case. Any actions by Mr Loukaras in breach of the Act or which place the public at risk pending the hearing of the review would be unwise indeed, and would no doubt result in an application by OLGR for revocation of the stay, which it may make at any time pending the hearing.
I am satisfied that the balance of convenience favours granting the stay on the basis of written undertakings being required to maintain, until further order of the Tribunal, the arrangement for control of the door by a qualified person and for the additional security proposed by The Music Kafe, as well as written undertakings to the tribunal about maintaining the additional security pending further order of the tribunal. The Music Kafe should also be required to undertake to advise the tribunal if for any unforseen reason the security company changes the arrangements, and the alternative equivalent arrangements which Music Kafe puts in place as a consequence.
I make orders accordingly. Also I grant liberty to apply regarding the precise wording of the undertaking until 6 June 2012.
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