The Club of Mt Isa Pty Ltd v Commissioner for Liquor and Gaming Regulation
[2018] QCAT 115
•23 April 2018
CITATION: | The Club of Mt Isa Pty Ltd v Commissioner for Liquor and Gaming Regulation [2018] QCAT 115 |
PARTIES: | The Club of Mt Isa Pty Ltd |
| v | |
| Commissioner for Liquor and Gaming Regulation (Respondent) | |
APPLICATION NUMBER: | GAR364-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 18 April 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Olding |
DELIVERED ON: | 23 April 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The Application to review a decision received 6 December 2017 is dismissed. |
CATCHWORDS: | GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – LICENSING TRIBUNALS GENERALLY – REVIEWS APPEALS AND CASES STATED – WHO MAY APPEAL – where applicant failed to pay licence fee by due date – where licence automatically cancelled – where applicant sought review by the Queensland Civil and Administrative Tribunal – where no decision to be reviewed ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant failed to pay licence fee by due date – where licence automatically cancelled – where applicant sought review – where no decision to be reviewed – where application struck out for want of jurisdiction Liquor Act 1992 (Qld), s 21(1)(i), s 200, s 208, s 209 |
APPEARANCES: | |
APPLICANT: | The Club of Mt Isa Pty Ltd |
RESPONDENT: | Commissioner for Liquor and Gaming Regulation |
REPRESENTATIVES: | |
APPLICANT: | represented by S. Pate of Gun Lawyers |
RESPONDENT: | represented by D.Robinson, Principal Lawyer for the Commissioner for Liquor and Gaming Regulation |
REASONS FOR DECISION
The Club of Mt Isa Pty Ltd (the Company) applied for review of an alleged decision of the respondent Commissioner relating to cancellation of the Company’s liquor licence for failure to pay licence fees by the due date.
The Commissioner applied to have the application for review struck out on the basis that the Tribunal does not have jurisdiction to decide the matter.
I have decided that the application for review must be dismissed. My reasons follow.
Statutory framework
The statutory framework for this matter includes provisions to the following effect:
a)Licence fees must be paid by the date prescribed by regulation: Liquor Act 1992 (Qld) (the Act), s 208.
b)The date prescribed for payment of licence fees is 31 July in the ‘licence period’ to which the fee relates: s 36E of the Liquor Regulation 2002 (Qld) (the Regulation).
c)The ‘licence period’ is a financial year: Act, s 200.
d)However, the Commissioner may accept payment of a licence fee under a schedule of instalment payments decided by the Commissioner if the licensee has been affected by natural disaster or has suffered personal or financial hardship (Act, s 209(2)) and, if the licence fee is paid in accordance with the instalment schedule, the licensee is taken to have paid the licence fee and the consequences of failing to pay a licence fee do not apply (s 209(3)).
e)If a licence fee is not paid, the licence is automatically suspended for 28 days and, if the fee is not paid in the suspension period, the licence is cancelled by force of s 36L of the Regulation.
f)
A licensee aggrieved by a ‘a suspension and impending cancellation’ may apply to the Tribunal for an extension of time if the failure to pay was due to natural disaster; ceasing to conduct business; an owner, lessee or mortgagee commencing proceedings for possession; or personal hardship (which does not include financial hardship): Regulation,
s 36N.
g)An application to the Tribunal for an extension may only be made during the suspension period: Regulation, s 36N(2).
h)The Tribunal has jurisdiction to review decisions of the Commissioner ‘relating to’, among other things, ‘the payment of a fee by instalments under section 209’: Act, s 21(1)(i).
Facts
The following facts are not in contention:
a)On 19 July 2017, the Commissioner granted the Company approval to pay its 2017-18 licence fee by equal instalments to be paid before 31 July 2017, 15 October 2017, 15 January 2018 and 15 April 2018 respectively.
b)The instalment due by 15 October 2017 was not paid by that date.
c)On 16 October 2017, the Commissioner advised the Company that the amount was outstanding and that as a consequence its licence was automatically suspended and if the instalment remained outstanding for 28 days the licence would be automatically cancelled.
d)By email dated 18 October 2017, Mr Noel Hagan on behalf of the Company responded that he had incorrectly assumed that payments were due on the 31st of each month and that as he was out of the Mt Isa area he had left instructions for his solicitor to pay the instalment.
e)On 10 November 2017, the Commissioner advised Mr Hagan that the payment had not been received and was required by 13 November and to urgently contact the Commissioner’s office.
f)On 16 November 2017, the Commissioner advised the Company of the cancellation of its licence from 14 November 2017.
There is evidence that the Company’s solicitor did not receive the initial instruction to pay the instalment. It appears that the Commissioner accepts that Mr Hagan attempted to give the instruction. As these matters are not strictly relevant to my decision, I do not make any findings regarding them.
The Company’s submissions
The Application to review as filed sought review of the cancellation of the Company’s licence. However, as the matter proceeded, the Company ultimately sought to have an alleged decision not to vary the instalment schedule reviewed.
This was said to be on the basis that Mr Hagan’s 18 October 2017 email constituted a request to vary the payment schedule and the Commissioner’s correspondence advising of the cancellation of the licence ‘by inference’ refused that request.
Hence it was submitted that there was, in terms of s 21(1)(i) of the Act, a decision of the Commissioner to ‘relating to . . . the payment of a fee by instalments under section 209’.
The 18 October 2017 email makes no reference to extending the time for payment of the instalment. It does not ask for additional time for payment of the instalment or variation of the amount, nor suggest an alternative time for payment of the outstanding instalment or an alternative instalment schedule. Indeed, it references instructions being given to the Company’s solicitors to make the payment. In that regard, it is notable that it was at that time still well within the power of the Company to make the payment within the suspension period.
Even on the most generous reading, the 18 October 2017 email is simply incapable of being construed as a request to vary the instalment schedule.
Likewise, the Commissioner’s letter advising of the automatic cancellation of the Company’s licence is incapable, by inference or otherwise, of being construed as conveying or evidencing a decision relating payment of the licence fee by instalments. It conveys no decision at all, because the Commissioner made no decision, but rather merely advised that the statutory consequence of failure to pay the fee in the suspension period – namely, cancellation of the licence - had occurred.
For completeness, I note that the Company also submitted that, because it had paid the first instalment due 31 July 2017, its licence fee was in fact paid for the three month ‘licence period’ from that date. Mr Pate, who appeared by telephone for the Company, did not appear to press this submission when I asked how it could be sustained in the face of s 200 of the Act defining ‘licence period’ as the relevant financial year.
Mr Pate did not submit that s 36N of the Regulation would apply to allow the Tribunal to extend the time for payment of the instalment, no doubt because that power is, in terms of the section, only exercisable in respect of ‘impending’ cancellations, not cancellations that have already occurred.
The Company did not point to any other basis that could found the Tribunal’s jurisdiction to consider this matter. In the absence of a relevant decision of the Commissioner for which the Act or Regulation provide for review by the Tribunal, there is no basis on which the Tribunal may hear and decide the Company’s application for review. Accordingly, it must be dismissed.
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