Sultans Nightclub Pty Ltd v the Liquor Licensing Board (Administrative Review)
[2009] ACAT 43
•8 October 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
EX-TEMPORE
SULTANS NIGHTCLUB PTY LTD v THE LIQUOR LICENSING BOARD (Administrative Review) [2009] ACAT 43
AT 83 of 2008
Catchwords:
Legislation:Liquor Act 1975 (ACT) ss 33, 129, 151, 157, 158
Cases:Briginshaw v Briginshaw (1938) 60 CLR 336
Re Barbaro trading as Murphy’s Shooters Pub and Nightclub
Other:Licensing Standards Manual 2004, Clauses 16, 38
Tribunal: Professor Peta Spender Presidential Member
Date of Orders: 8 October 2009
Date of Reasons for Decision: 8 October 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 83 of 2008
BETWEEN:
SULTANS NIGHTCLUB PTY LTD
Applicant
AND:
THE LIQUOR LICENSING BOARD
Respondent
Tribunal:Professor Peta Spender Presidential Member
Date: 8 October 2009
ORDER
The decision under review is varied as follows:
1)
The applicant will pay the sum of $250 to the Australian Capital Territory for breach of section 129 of the Liquor Act 1975 (ACT).
2)
The applicant will pay a further sum of $250 to the Australian Capital Territory for breach of clause 16 of the Licensing Standards Manual 2004 made pursuant to section 33 of the Liquor Act 1975 (ACT).
3)No order as to costs.
……………………………….
Professor Peta Spender
Presidential Member
REASONS FOR DECISION
SUMMARY
I have concluded on the evidence in this case that the licensee has contravened
s 129 of the Liquor Act and clause 16 of the Liquor Licensing Stands Manual. I also find that the licensee has breached s 157 of the Liquor Act but that he has established the defence under s 157(3). As regards the onus of proof, I have applied the Briginshaw v Briginshaw (1938) 60 CLR 336 standard to establish breach of the provisions and the balance of probabilities standard to establish the defence.
The applicant sought review of the decision of the Liquor Licensing Board of 7 August 2008 that the appellant pay a monetary penalty for:
a) the failure to comply with s 157(1) of the Liquor Act 1975 (ACT) (‘Liquor Act’) on 29 February 2008 by allowing a person under 18 years to be in a bar-room on licensed premises when not in the care of a responsible adult.
b) the failure to comply with clause 16 of the Licensing Standards Manual 2004 by allowing a direct line of sight into toilet facilities as the main entry to the men’s toilets did not have a door, and one of the two cubicles in the men’s toilets also did not have a door.
c) the failure to comply with s 129 of the Liquor Act by failing to maintain the licensed premises in good repair as the doors of the men’s toilets were damaged and the glass in three windows adjoining the billiard table and facing East Row were broken.
The respondent did not particularise the allegations regarding the toilets in respect of the alleged breach of s 129, so by consent this aspect of the decision was not the subject of the Tribunal’s review.
REASONS FOR DECISION
The Section 157(1) Allegation
Under this provision:
‘(1) The licensee commits an offence if a person under 18 years old is in a bar-room on the licensed premises except in the care of a responsible adult.’
We have the evidence of Agent Beaver and Sergeant Lester that on the morning of 29 February 2008 a young person (who shall be referred to in these reasons as ‘S’) was in the bar-room of the premises conducted by the applicant in these proceedings (‘the licensee’). S was below the age of 18 years.
Although Mr Archer on behalf of the licensee contends that S may not have been properly identified, in my view this is not the case. S gave evidence to the Liquor Licensing Board on 27 May 2008 and his evidence is available to the Tribunal. Although in some respects that evidence is unreliable, the evidence of his identity was corroborated by a certified copy of his passport produced by his parents on the morning of 29 February 2008 and annexed to the statement of Sergeant Lester. The date of birth shown on the passport is the same as the date of birth provided by S in the Liquor Licensing Board hearing. This evidence establishes his identity and the fact that he had not attained the age of 18 years on the morning of 29 February 2008.
There is no dispute that S was not in the care of a responsible adult and the evidence of the security guard, Mr Cavernalis, was that he entered the bar-room with a group of 4 young people.
S did not give evidence before this Tribunal but he gave evidence before the Liquor Licensing Board that he wasn’t allowed into the premises and he was arrested in the line up at the front of the club but the evidence in this respect is not reliable and is contradicted by Agent Beaver, Sergeant Lester and Mr Cavernalis.
I therefore conclude that the respondent has established a breach of s157 (1).
The Section 157(3) Defence
However, it is defence under s 157(3) to a proceeding under s 157(1) if the licensee proves that—
‘(a) the person was at least 16 years old; and
(b) the person had shown a document of identification to the licensee or an employee of the licensee on or after entering the bar-room.’
In relation to the elements of s 157(3), the evidence that I previously referred to regarding S’s date of birth establishes the threshold requirement for s157(3)(a) – that S was over 16 years at the relevant time.
The second element of the defence is that:
‘ (b) the person had shown a document of identification to the licensee or an employee of the licensee on or after entering the bar-room.’
In this respect we have the evidence of the doorman, Mr Cavernalis. Mr Cavernalis testified that he was shown a document of identification by S. It was an ACT provisional driver’s licence.
Ms Aminath on behalf of the Commissioner has drawn the Tribunal’s attention to some inconsistencies in Mr Cavernalis’ evidence. For example, she points to Mr Cavernalis’ evidence about the length of time that S was on the premises before the raid occurred when compared to the evidence of Agent Beaver and Sergeant Lester. There were some inconsistencies in Mr Cavernalis’ evidence in this respect. At various points in his evidence he referred to 2-5 minutes and then later said it was 1 minute. However the police officers were similarly unclear. When asked how long he was in the premises before approaching S, Agent Beaver said words to the effect:
‘If I have to give you a figure I’d say about 10 mins. It wasn’t a half hour and it wasn’t 2 minutes.’
Sergent Lester could not recall how long he had been on the premises before approaching Mr S despite several questions put to him about it in cross examination.
I consider that all witnesses demonstrated confusion about timing therefore in my view it cannot be said that Mr Cavernalis’ credibility was impaired by this confusion.
Another inconsistency pointed out by Ms Aminath was Mr Cavernalis’ description of S’s demeanour when he was taken into custody. Both police officers indicated that he was disorderly whereas Mr Cavernalis said that he didn’t misbehave. I agree that it is inconsistent but it might be explained by Agent Beaver’s evidence that S was not released outside when he was forcibly escorted to the paddy wagon. He may therefore have been restrained and correspondingly did not misbehave.
A further point made by Ms Aminath was that Mr Cavernalis was equivocal in his evidence about the date of birth on the licence. In fact Mr Cavernalis said this in examination in chief when asked what date was on the licence:
‘I can’t say exactly but I think it was 1988.’
This was repeated in cross examination.
Ms Aminath has invited me to find that Mr Cavernalis was an unreliable witness but I found him credible and whilst there were anomalies in his evidence, he did make express reservations about these issues and I do not regard these anomalies as significantly damaging his credibility.
The second element of the defence in s 157 (3) requires that
‘(b) the person had shown a document of identification to the licensee or an employee of the licensee on or after entering the bar-room.’
‘Document of identification’ is defined in s 151 of the Liquor Act to mean a document that—
‘(a) is a driver licence, proof of age card or passport; and
(b)contains a photograph that could reasonably be taken to be of the person; and
(c) indicates that the person to whom the document was issued is at least 18 years old.’
Mr Cavernalis was clear that he had seen a document of identification shown by S and he did not diverge from this in cross examination. Ms Aminath argued that he must have been negligent in examining the driver’s licence but I cannot infer this from the limited material that Ms Aminath put to him in cross examination. Ms Aminath said that she asked him how he examined licences and he said that he looked at the photograph, the date of birth and the expiry date.
Ms Aminath invited me to infer from this answer that he had failed to properly examine the licence as required by clause 38 of the Liquor Licensing Standards Manual e.g. to check if the photograph had been tampered with or has been substituted. There is a further requirement in clause 38 that close attention be paid to physical features such as moles and freckles. None of this was put by Ms Aminath to Mr Cavernalis and I would not expect him to volunteer this information chapter and verse. In order to draw the inference suggested by Ms Aminath, he should have been asked directly about the elements of clause 38.
There is a comment in Sergent Lester’s statement that says that the security guard told him that morning that he had not checked the ID but this statement is hearsay and Sergeant Lester had no recollection of the conversation when he gave evidence and I therefore do not take it into account.
However, the evidence of the police officers and the AFP document listing the property found on the person marked Exhibit R1 proves that the property S had in his possession when he was apprehended by the police officers did not include a driver’s licence.
Mr Archer speculated that the driver’s licence may have belonged to another person in the group that accompanied him or might be a forgery which, in either case, had been passed back to others in the group.
I had some hesitation as to whether the defence in s 157 (3) could be satisfied by the young person providing a forgery or someone else’s identification. This behaviour constitutes an offence under s 158 of the Liquor Act. However, upon reflection, this is logically the situation that the defence is intended to cover - where an employee or licensee has been the victim of a fraud perpetrated by a young person. I am fortified in this conclusion by noting that the Liquor Licensing Board found in Re Barbaro trading as Murphy’s Shooters Pub and Nightclub on 24 November 2008 that the defence had been established where a young person had borrowed someone else’s identification. Such an action would fall under s 158 of the Liquor Act but was held to be available to the licensee as a defence under s 157(3).
For the purposes of s 151, it must be established that the photograph can reasonably be taken to that of the person. We can only assume this because we do not have the licence but this can be inferred because Mr Cavernalis said that he examined the document and he considered that it belonged to S and as stated above, I have concluded that Mr Cavernalis was a credible witness.
I therefore find that the defence under s 157(3) is established on the balance of probabilities.
The Section 129 Allegation
The second allegation is a breach of s 129 of the Liquor Act which requires the licensee to maintain the licensed premises and all equipment, appliances, fittings, furniture and floor coverings in, or used in, the premises in good repair.
There is no dispute that there were two holes in the window in the bar-room caused in one case by a pool cue and in another case by a bottle smashing into the window. Mr Ryan’s evidence was that the larger hole caused by the bottle had been there for several months and the smaller hole caused by the pool cue had been there for several weeks. The glass in the window was broken but held together by a protective film which kept the glass fragments in place.
Both Mr Archer and Ms Aminath pointed to judicial and dictionary meanings of the word ‘repair’ and argued that the obligation to repair is contextual. The argument that was put by both parties is that the purpose of the requirement to keep premises in good repair is to ensure that patrons are safe.
In my view that interpretation would be appropriate if s 129 said ‘repair’ but in fact it requires ‘good repair’. This is a common covenant in leases which establish an obligation to rectify broken items and often extends to minor replacements. It establishes a somewhat higher standard than ‘repair’ because it may import an element of amenity.
I agree however that the standard of repair and the element of amenity is contextual and it is therefore important to consider the context here. This is a public place where people are gathering to socialise and the presentation of the premises may promote or discourage anti-social behaviour. The standard of maintenance of premises invites us to differentiate between premises that are well-maintained and reputable and potential ‘dives’, to use the vernacular.
So ‘good repair’ goes somewhat beyond the ‘repair’ required to minimise harm and it is clear that the failure to mend the windows for several months during which time the patrons would be looking at the shattered glass behind the film is not keeping the premises in good repair.
I therefore find that s 129 is breached.
The Clause 16 Allegation
The third allegation is a breach of clause 16 of the Liquor Licensing Standards Manual 2004 which is an instrument made under s 33 Liquor Act. Pursuant to s 33 the Minister may set out in the Manual the general standards with which licensed premises and their licensees are required to comply.
Clause 16 requires that:
‘The licensee shall ensure the following general standards are met in relation to toilet facilities:
• there shall be no direct line of sight into toilet facilities;’
This allegation arises from the statement of Constable Coutts that the door of the right hand cubicle of the men’s toilets was missing (see folio T- 18) and the internal door to the male toilets along the passageway (referred to in the hearing as ‘B2’) was also missing. Constable Coutts states:
‘I observed that the main entry to the mens’s toilets did not have a door. Such a door would block the view of people passing the toilet entry preventing them from observing people using the urinal.’
This observation is consistent with the photographs at folios T-21 and T-22. Further, the diagrams at folio T-34 and Annexure A to Mr Ryan’s statement show the B1 door as directly in front of the urinal. There is no dispute however, that the main door from the premises to the passageway to the male toilets (referred to in the hearing as ‘B1’) was affixed but the evidence of Mr Ryan is that it is left open, at least sometimes.
Mr Ryan’s evidence in the hearing was that there is a direct line of sight from the doorway of B1 into the men’s toilet if you ‘squash up’ against the left hand side of the doorway when the B1 door is open. He gave evidence that a person could see the basins in the men’s toilet from this position. If one can see the basin from this position, I infer that the direct line of sight would also allow one to see into the right hand cubicle which had no door, as it was directly behind the basin.
Mr Archer submitted that I should adopt a purposive interpretation when considering whether this constitutes a breach of the standards. I have considered the purpose of clause 16. It has multiple purposes:
1. to facilitate the privacy of patrons – see dot points 1, 2 and 14;
2. to provide amenity (comfort, convenience and pleasure) to patrons – see dot points 4-7, 10-11, 13;
3. to ensure high standards of hygiene - dot points 7-9, 12.
A strict interpretation of the provisions will ensure that these purposes are fulfilled. The breach in this case compromises the privacy of patrons and is exacerbated by the probability that men using the cubicles can be seen in the main area of the bar-room. Replacement of both doors would have remedied this situation immediately and should have been attended to with alacrity.
I therefore find that clause 16 has been breached.
I now invite you to address me on penalty with respect to the breaches of section 129 and clause 16.
……………………………….
Professor Peta Spender
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 08/83
APPLICANT: SULTANS NIGHTCLUB PTY LTD
RESPONDENT: THE LIQUOR LICENSING BOARD
COUNSEL APPEARING: APPLICANT: ARCHER
RESPONDENT:
SOLICITORS: APPLICANT: SILK
RESPONDENT: AMINATH
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: PROF P SPENDER PRESIDENTIAL MEMBER
DATE/S OF HEARING: 8 OCTOBER 2009 PLACE: CANBERRA
DATE/S OF DECISION: 8 OCTOBER 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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