Potter trading as Fine Fidelity v Commissioner of Liquor and Gaming
[2013] QCAT 736
•3 December 2013
| CITATION: | Potter trading as Fine Fidelity & Ors v Commissioner of Liquor and Gaming & Anor [2013] QCAT 736 |
| PARTIES: | Shane Kevin Potter trading as Fine Fidelity Richard Mark Armitage Jennifer Goodwin Revival Ministries Australia Ltd (Applicants) |
| v | |
| Commissioner of Liquor and Gaming LA Showgirls Pty Ltd (Respondents) |
| APPLICATION NUMBER: | GAR065-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howard, |
| DELIVERED ON: | 3 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The request of Mr Potter to attend the hearing by telephone is refused. 2. In the absence of Mr Potter attending the hearing in person, he may rely upon his written submissions filed in the Tribunal on 11 November 2013. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW- LIQUOR AND GAMING-APPLICATION FOR TELEPHONE ATTENDANCE AT HEARING- review of decision of Commissioner of Liquor and Gaming to grant an adult entertainment permit-where hearing of proceeding set down in Brisbane for 2 days- where an applicant applies to attend the hearing by telephone- where applicant proposes to attend by telephone while running his shop- where general requirement that parties attend hearings personally- where applicant has provided written submissions and is not required for cross-examination Liquor Act 1992 s 33 Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175 Ramke Constructions Pty Ltd v QBSA (No 1) [2013] QCAT 574 |
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
Mr Potter made one of 4 applications for review of a decision of the Commissioner of Liquor and Gaming to grant an adult entertainment permit in respect of licensed premises. The 4 proceedings were consolidated and are listed for hearing on 12 and 13 December 2013. The Tribunal has jurisdiction for the review under the Liquor Act 1992. The Tribunal’s role in review proceedings is to make the correct and preferable decision[1] on the evidence before it and according to law, after a fresh hearing on the merits of the application.[2] For the purposes of the review, the Tribunal stand in the shoes of the original decision-maker.[3]
[1] QCAT Act s 20(1).
[2] QCAT Act s 20(2), s 19.
[3] QCAT Act s 19(c).
Mr Potter filed an application seeking to attend the hearing by telephone. None of the other parties opposed or objected to the application. I refused that application. Mr Potter has now sought reasons for my decision.
The procedure for a proceeding is at the discretion of the Tribunal.[4] As the High Court has recently observed, the resources of courts (and by analogy, tribunals) for resolution of disputes serve ‘…the public as a whole, not merely the parties to the proceedings.’[5] It is in the Tribunal’s interests in using its scarce resources, as far as possible, to ensure that efficient hearing processes are employed, which best serve the needs of all parties to the proceeding and the community generally. Accordingly, it is a matter for the Tribunal to decide on an efficient procedure.
[4] QCAT Act s 28(1).
[5]Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, at 217, [113].
The usual requirement is, (as the Notice of Hearing sent to the parties states), that parties attend the hearing of their proceeding in person.[6] The QCAT Act provides that the Tribunal may conduct proceedings by remote conferencing if appropriate: s 32. It is for the Tribunal, in the exercise of its discretion, to decide the appropriateness of allowing a party, or witness as the case may be, to attend remotely.
[6] BN v Victim Assist Queensland (No 2) [2012] QCAT 287, [10].
Personal attendance is preferable as it allows the Tribunal to best monitor a party’s understanding of what is asked of them and their understanding of the proceedings generally.[7] It may also better assist in assessing credibility of a witness, although credibility of witnesses giving oral evidence is not an issue here. That is because in review proceedings under the Liquor Act 1992, the Tribunal must generally hear and decide the review by way of reconsideration of the evidence before the Commissioner when the decision was made.[8] (It may in prescribed circumstances give leave to a party to present new evidence,[9] but leave for new evidence has not been granted in these proceedings.) Mr Potter has the evidence that was before the Commissioner. He and all other parties were provided with it by the Commissioner in the bundle of documents required by s 21(2) of the QCAT Act.
[7] See discussion in Ramke Constructions Pty Ltd v QBSA (No 1) [2013] QCAT 574.
[8] Liquor Act 1992 s 33.
[9] Liquor Act 1992 s 34.
As a consequence, the hearing will be on the basis of the evidence which was before the Commissioner. Accordingly, there will be no oral evidence given and no witnesses cross-examined. At the hearing, the parties will have the opportunity to make oral submissions only. All parties have already had the opportunity to consider the evidence which the Commissioner has filed and to provide written submissions, in accordance with my directions of 27 August, 2013. Each applicant, including Mr Potter was directed to file and serve their written submissions. Mr Potter has filed written submissions.
The respondents were also directed to file written submissions. Then, each applicant, including Mr Potter, was given the opportunity to provide written submissions in reply to the respondents’ submissions. Mr Potter sent an email to the Tribunal to the effect that he had no written submissions to make in reply.
Mr Potter’s application to attend by telephone is made on the basis that he operates a retail store and that the hearing is 13 days before Christmas in peak trading time. He says that he is unable to close the store as he does ‘not have any other staff members to service our customers’ and that his wife is unable to assist because they have 2 young children to care for.
It is reasonable to infer from his application that he proposes to attend the hearing, whilst simultaneously operating the store and serving customers. In my view, this would be a highly unsatisfactory, and inefficient manner in which to conduct a hearing. It is reasonable to expect background noise from customers talking and doing whatever they do to inspect and perhaps try out items in the store, Fine Fidelity, Home Entertainment Systems.
It is also reasonable to expect that Mr Potter, as the sole operator and sales person in the shop, would be from time to time speaking to customers, explaining goods for sale, and organising and finalising purchases. All of these sounds and discussions, which are irrelevant to the hearing, would be audible in the hearing room, causing significant disruption.
Persons attending Tribunal events by telephone, such as directions hearings are often accompanied by level of extraneous background noise emanating from their location and this not infrequently impacts by causing disruption and difficulty understanding what is said for those in the hearing room. Of course, it would also create difficulties in the case of a transcript being ordered for purposes of any appeal. That said, directions hearings are of short duration and that disruption is manageable so as not to occasion parties the inconvenience of travelling to attend them unless located nearby.
However, this proceeding is listed for 2 days of hearing, in view of the number of parties to make submissions. A significant level of disruption, inefficiency and inconvenience to the Tribunal and the other parties would be expected during the hearing if Mr Potter attended by telephone.
Further, it is more difficult to monitor a party’s understanding of what is occurring in the hearing room, if the party is on the telephone. Indeed, in the circumstances of Mr Potter running a shop and attending a hearing simultaneously, it is difficult to conceive that he would be able to fully follow the hearing process in addition to attending to his other tasks.
These factors weigh against the appropriateness of allowing Mr Potter to attend the hearing by telephone.
Further, Mr Potter has already provided written submissions. If he attends the hearing personally, he could speak to those submissions before the Tribunal. However, with knowledge of the matters which the respondents raise in their written submissions and to which they will speak in making oral submissions, he has made no written submissions in reply.
He knows the submissions made by each party. He had the opportunity to make submissions about the evidence and in response to other parties’ submissions about it in order to make his arguments. He can rely upon those submissions which he has placed before the Tribunal if he does not attend in person. His arguments will therefore be before the Tribunal at hearing. He also has the opportunity to attend the hearing.
Having regard to these factors, I find that it is not appropriate to allow Mr Potter to attend the hearing by telephone. I refuse the application for him to do so. However, as indicated, Mr Potter may rely upon his written submissions in any event if he does not attend at the hearing in person.
I make orders accordingly.
For completeness, given that these reasons were prepared after the oral hearing, I make some observations. At the hearing, Mr Potter did not attend in person. However, as indicated in these reasons, the Tribunal identified Mr Potter’s submissions as documents relied upon by him which were to be considered by the Tribunal. Although other applicants who were present had earlier foreshadowed seeking the Tribunal’s leave to represent his views, in light of our stated intention to consider his submissions, they did not proceed with an application to do so.
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